ESRT 250 W. 57th St., L.L.C. v. 13D/West 57th LLC

Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered March 4, 2016, which, insofar as appealed from as limited by the briefs, granted the motion of plaintiff and counterclaim defendants’ to dismiss the first, second and third counterclaims and the fourth, fifth and part of the third affirmative defenses, unanimously affirmed, without costs. Defendants, a commercial tenant and its principal, asserted counterclaims and affirmative defenses predicated on the violation of the covenant of quiet enjoyment or constructive eviction. Those claims were properly dismissed, as the only harm suffered was by tenant’s purported subtenant, which subtenancy was wholly unauthorized, in violation of the lease (see Excel Graphics Tech. v CFG/AGSCB 75 Ninth Ave., 1 AD3d 65, 70 [1st Dept 2003], lv dismissed 2 NY3d 794 [2004]). Tenant cannot recover for interference by landlord with an unlawful subtenancy (cf. 150 Greenway Terrace, LLC v Cullen, 14 Misc 3d 130[A], 2007 NY Slip Op 50020[U] [App Term, 2d Dept. 2d & 11th Jud Dists 2007]). Defendants’ claims are further barred by the clause in the lease that prohibits landlord from being liable for the acts of other tenants (see Alpha Holding Corp. v Brescio, 2009 NY Slip Op 30936[U] [Sup Ct, NY County 2009]). The counterclaim and affirmative defense based on fraud were also properly dismissed. While landlord allegedly knew that the neighboring unit’s marijuana smoking would impair defendants’ use of the premises, the landlord made no actionable misstatement, and it had no duty to speak, given the arm’s length nature of the landlord-tenant relationship (see Sehera Food Servs. Inc. v Empire State Bldg. Co. L.L.C., 74 AD3d 542 [1st Dept 2010]). Concur — Richter, J.R, Mazzarelli, Kahn and Gesmer, JJ. [Prior Case History: 2016 NY Slip Op 30353(U).]