Hyams v. Kit Supply Corp.

—Order, Supreme Court, New York County (Stuart Cohen, J.), entered December 15, 1997, which, in an action to recover rent due under a lease after the tenant vacated the premises prior to the expiration of the lease, insofar 16 as appealed from, denied defendants’ cross motion for partial summary judgment declaring the lease terminated as of the date of a purported surrender agreement and dismissing the causes of action for fraud as time-barred, unanimously affirmed, without costs. The letter defendants claim was a surrender agreement purports only to discontinue a summary proceeding believed to be without merit because commenced after the tenant had delivered the keys to the landlord and left the premises. It cannot be construed as an express agreement abrogating the landlord’s right under the lease, and at common law, to do nothing and collect the full rent due under the lease or to relet for the tenant’s benefit and collect any difference between the old and new rents (see, Centurian Dev. v Kenford Co., 60 AD2d 96, 98). Whether such an agreement can be implied by the landlord’s acceptance of the keys with the understanding that the tenant was abandoning the premises because of dissatisfaction with the building’s freight elevator service is an issue of fact (see, 2 Rasch, New York Landlord and Tenant — Summary Proceedings § 26:1 [3d ed]). Concerning the plaintiffs fraud causes of action alleging defendants’ entering into the subject lease in the name of a corporation that did not exist, we agree with the IAS Court that no proof was offered with respect to the specific time when plaintiff discovered the alleged fraud, and that defendants’ claim of time bar under CPLR 203 (g) and 213 (8) must therefore be denied at this juncture. Concur— Ellerin, J. P., Wallach, Tom, Mazzarelli and Saxe, JJ.