Coney Island Exhaust, Inc. v. Adriana Realty Corp.

—In an action, inter alia, for a permanent injunction enjoining the defendant from interfering with the plaintiff’s leasehold rights, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Kramer, J.), dated October 2, 1995, as denied its motion for partial summary judgment on its counterclaim for the payment of rent, use and occupancy charges, and real estate taxes. Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the defendant’s motion for partial summary judgment on its counterclaim is granted. 507 The instant appeal arises out of a conflict between the defendant landlord and the plaintiff tenant over the plaintiff’s nonpayment of rent for the demised premises. A tenant has an independent obligation to pay rent which continues as long as the tenant remains in possession (Earbert Rest, v Little Luxuries, 99 AD2d 734). On its motion for partial summary judgment, the defendant landlord submitted evidence which established a prima facie case that the tenant had failed to pay past due rent and/or use and occupancy charges and real estate taxes. The plaintiff tenant’s opposition papers consisted of an affirmation of counsel who was without personal knowledge of the facts and failed to raise a triable issue of fact. The tenant’s claim of actual partial eviction is not preserved for appellate review, as it was not raised in opposition to the defendant landlord’s motion (see, Whitfield v Town of Oyster Bay, 225 AD2d 763; Lesman v Weinrib, 221 AD2d 601). Thus, the landlord was entitled to partial summary judgment on its counterclaim for past due rent and/or use and occupancy charges and real estate taxes. Rosenblatt, J. P., O’Brien, Ritter and Friedmann, JJ., concur.