West Coast Company v. International Hors D'Oeuvrery

(Civ. Ct. N.Y. Cty. 6/21/88)

We represented: Petitioner

Leland Degrasse, J.C.C.

DECISION and ORDER Respondent's motion for an order permitting discovery is denied. Petitioner's cross motion to dismiss the first, second, third and fourth affirmative defenses and the first, second and third counterclaims is granted.

Respondent seeks discovery to "ascertain Petitioner's negligence' in causing water damage to the premises. In summary proceedings discovery is granted only upon a showing of extract needs (Dubowsky v. Goldsmith, 20 2 App Div 813). Respondent has made no such showing here. The request for discovery is based upon its affirmative defenses and counterclaims. Based upon the foregoing, respondent's motion for an order permitting discovery is denied.

An attorney of record, or his associate, may verify pleadings pursuant to CPLR 3021, provided the basis of knowledge of the facts are set forth. (Teichman v. Ker, 60 Misc.2d 789; RPAPL 741). Accordingly, the petition has been properly verified. Petitioner's cross motion to strike respondent's first affirmative defense is therefore granted.

Under the second affirmative defense, it is alleged that there was a breach of the covenant of quiet enjoyment. Such a defense is not available in a nonpayment proceeding unless there has been an abandonment of the premises (Boreel v. Lamton, 90 NY 293). Accordingly, petitioner's cross motion to strike respondent's second affirmative defense is granted.

Under the third affirmative defense, it is alleged that the premises lack a certificate of occupancy. In commercial leases, a landlord's failure to obtain or amend a certificate of occupancy is independent of a tenant's obligation to pay rent (56-70 59^th St. Holding Corp. v. Fedden-Quigan; 5 NY.2d 557). Therefore, the third affirmative defense is dismissed.

Under the fourth affirmative defense, it is alleged that the premises were damaged through petitioner's negligence. A commercial tenant has an independent obligation to pay rent as long as the tenant remains in possession of the property. (Earbert Restaurant v. Little Luxuries, 99 AD.2d 734). Paragraph 26 of the lease specifically provides that the tenant's obligation to pay rent continues even though the landlord has breached an expressly implied obligation under the lease. Accordingly, petitioner's cross motion to strike respondent's fourth affirmative defense is granted.

Paragraph 25 of the lease expressly prohibits the interposition of any counterclaims in the event of a summary proceeding for non-payment of rent. Such lease provisions are enforceable (Bomze v. Jaybee Photo Suppliers, 11-7 Misc.2d 957 [AT 1]).

Accordingly petitioner's cross motion to strike respondent's first, second and third counterclaims is granted.

Based upon the foregoing the court 1) denies respondent's motion for an order permitting discovery; 2) grants petitioner's cross motion dismissing respondent's first, second, third and fourth affirmative defenses; 3) grants petitioner's cross motion dismissing respondent's first, second and third counterclaim.

The foregoing shall constitute the decision and order of the court.