Ashford-Clinton Corp, Petitioner, v. BBQ LLC (2026)

The matter before the Court is the result of a holdover action filed on April 16, 2026, by the Plaintiff, Ashford-Clinton Corp. (hereinafter "Petitioner") against Utica BBQ LLC (hereinafter "Respondent").

Respondent rented property located at 244 Roosevelt Drive in the City of Utica, NY owned by Petitioner. The parties executed a 3-year lease effective January 1, 2023. Plaintiff claims Respondent failed to vacate the premises despite being served with a 10-day Notice to Quit following Respondent's failure to pay rent and complete necessary repairs.

At trial, The Court received seven (7) exhibits into evidence are identified as follows:

Petitioner's Exhibit # 1 Petition w/ attachments

Petitioner's Exhibit # 2 Rent ledger

Petitioner's Exhibit # 3 Water bill

Petitioner's Exhibit # 4 Photos (April 23, 2026)

Petitioner's Exhibit # 5 Photos (May 1, 2026)

Petitioner's Exhibit # 6 Photos (May 8, 2026)

Respondent's Exhibit A Petition from prior proceeding (LT-01550-23)

The parties submitted memoranda of law in further support of their arguments following the trial. Respondent filed their memorandum on June 26, 2026. Petitioner filed their memorandum on July 20, 2026.

Now, based upon review of the pleadings and the proof presented at trial, the Court finds as follows:

I. FINDINGS OF FACTS

At the outset of the hearing, Petitioner established the parties began a landlord-tenant relationship on November 28, 2022, whereby Petitioner agreed to rent to Respondent a commercial building for operating a restaurant. Carrie Roberts, a bookkeeper and property manager for Petitioner, testified that the monthly rental cost from January 2023 through December 2025 was $1,200.00. That amount increased to $1,400.00 beginning January 2026.

Ms. Roberts testified that Petitioner received correspondence from the Utica Codes Department on December 22, 2025, containing a notice and order for maintenance, asserting repairs needed to be made to the roof and driveway of the premises. Ms. Roberts stated the conditions went uncorrected, and Petitioner thereafter did not receive any future rental payments from Respondent. Additionally, Respondent accrued a past due balance on water charges from the Mohawk Valley Water Authority.

On January 29, 2026, Petitioner served upon the Respondent a Notice of Default and Demand for Payment. Thereafter, Respondent continued to fail to pay rent and did not cure the defaults. As such, Respondent was personally served with a Notice of Lease Termination and 10-Day Notice to Quit on March 25, 2026. When ten days elapsed without Respondent vacating the premises, Petitioner filed the instant action.

a. Respondent's arguments

At trial and in its post-trial memorandum of law, Respondent argues it was not responsible for the repairs to the premises that Petitioner maintains resulted in Respondent's default. Instead, Respondent asserts the required repairs to the parking lot and roof, as well as repairs necessitated by a fire occurring at the premises in February 2026, were the responsibility of the Petitioner.

Regarding the parking lot, Respondent points to section 6(d) of the Lease (" at all times, lessee shall keep the sidewalks, if any, in front of or adjoining the leased premises cleaned and in a slightly sanitary condition") and argues that as the lease did not set an explicit obligation to Respondent to make repairs to the parking lot, such responsibility would, by default, fall to the Petitioner.

As to the condition of the roof, Respondent maintains that the Lease does not assign to Respondent an affirmative duty to make any structural repairs, and therefore such responsibility must again fall on Petitioner. Respondent does not dispute that it discontinued paying rent, but states any it diverted any funds ordinarily used for rental payments to repairs at the premises in order for Respondent to continue operating its business. Respondent seeks credit for expenses incurred in making such repairs.

Finally, Respondent asserts Petitioner bore responsibility for making repairs to the premises following a fire that occurred at the premises in February 2026 by no fault of Respondent. Specifically, Respondent maintains that paragraph 27 of the Lease required Petitioner to make such repairs within ninety (90) days, and its failure to do so created a constructive eviction. Respondent argues any rental arrears should therefore be abated by the expenses Respondent incurred from repairing the premises following the fire.

In his testimony on behalf of Respondent, Chance Borawski, owner of Utica BBQ LLC, stated he sent various correspondence to Petitioner regarding the state of the premises and the need for repairs, but never received a response.

b. Petitioner's arguments

At trial and in its post-trial memorandum of law, Petitioner argues it had no contractual duty to perform repairs either to the roof or the parking lot of the premises. Furthermore, Petitioner maintains that Respondent's constructive eviction defense fails based on its continuous possession of the leased premises.

Petitioner asserts Respondent violated the lease by failing to pay rent and continuing to remain in possession despite being served a notice of termination. As such, Petitioner seeks a judgment of possession and damages for rental arrears, past due water charges, attorney's fees, costs and disbursements.

II. CONCLUSIONS OF LAW

The Petitioner's legal theory appears to be one of breach of contract. "Under New York law, to establish a breach of contract a plaintiff must plead and prove four elements; (1) the existence of an agreement; (2) adequate performance of the contract by the plaintiff; (3) breach of contract by the defendant; and (4) damages." Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co., 375 F.3d 168 (2d Cir. 2004).

Respondent acknowledges that the parties entered into a landlord-tenant agreement and does not dispute that it has not paid rent since December 2025. However, Respondent maintains that it stopped paying rent in good faith to offset the costs it incurred completing repairs that it believes were the Petitioner's responsibility.

Pursuant to RPAPL §§ 711 and 713, a holdover proceeding may be brought when, among other grounds, the parties' rental agreement has been terminated due to a material breach. Eighteen Assoc. LLC v. Court St. Pizza, Inc., 122 N.Y.S.3d 482 (App. Term 2d, 11th, 13th Jud. Dists. 2020). Examples of a material breach include failure to pay rent and failure to make repairs.

While Respondent maintains its withholding of rent was based on Petitioner's failure to make repairs, it is firmly established that the covenant to pay rent remains independent of the covenant to make repairs as long as the tenant continues to occupy the premises. Universal Comms. Network, Inc. v. 229 W. 28th Owner, LLC, 85 AD3d 668 (1st Dep't 2011).

This principal continues to apply in the case of a commercial lease. In the absence of a lease provision authorizing rent withholding under specific circumstances, a commercial tenant who stays in possession must continue to pay rent even if the landlord breaches the rental agreement by failing to perform required repairs. Fifth Line, LLC v. Fitch, 167 AD3d 847 (2nd Dep't 2018); Soundview Cinemas, Inc. v. AC I Soundview, LLC, 149 AD3d 1121 (2nd Dep't 2017).

Therefore, the Court concludes that the Respondent breached the lease by failing to pay rent since December 2025.

a. Repairs

Even if the law were to permit the withholding of rent where a landlord was contractually obligated to make certain repairs and failed to do so, the Court is not convinced that the repairs addressed in this case were the responsibility of Petitioner.

It is well-settled under common law that a landlord of a commercial lease has no implied obligation or duty to make repairs to the leased premises. Emigrant Industrial Savings Bank v. One Hundred Eight West Forty Ninth Street Corporation, 255 A.D. 570, 8 N.Y.S.2d 354 (1st Dep't 1938), order aff'd, 280 NY 79.

Similarly, the Court of Appeals has determined that a landlord's duty to repair or rebuild demised premises arises only where there is an express covenant imposing such an obligation. Witty v. Matthews, 52 NY 512 (1873). Absent an express covenant, the landlord is neither bound to repair the premises nor to reimburse the tenant for repairs made on its own initiative. Potter v. New York, O. & W. Ry Co., 233 A.D. 578, 253 N.Y.S. 394 (4th Dep't 1931) aff'd, 261 NY 489 (1933).

In this case, paragraph 6(d) of the lease provides that it is the tenant's responsibility "To keep the Premises in good condition and repair at LESSEE'S own expense, except repairs which are the duty of the LESSOR."

Paragraph 6 also provides:

"All repairs, except those specific repairs set forth below which are the responsibility of the LESSOR, shall be made by the LESSEE at its own expense. If the LESSOR pays for the same or any part thereof, LESSOR shall be reimbursed by LESSEE for such amount."

Under the above-referenced paragraph there are several boxes referencing various structural repairs, including the roof. None of the boxes are checked.

As the Lease lacks any express covenants providing the Petitioner is responsible for repairs to the roof or the parking lot, the Court finds such repairs are the responsibility of the Respondent.

The Court notes it received into evidence at trial Respondent's Exhibit A, a copy of a petition on a 2023 landlord-tenant matter in this Court. Respondent argues the absence of an assignment of an affirmative duty of the tenant to make repairs to the roof or other structures of the premises by default made such repairs the responsibility of the Petitioner.

It is firmly established that when a written rental agreement is clear, complete, and unambiguous, the court will not consider any additional oral or written statements that would contradict the terms of the lease. Madison Ave. Leasehold, LLC v. Madison Bentley Assoc., LLC 8. NY3d 59 (2006). "Absent fraud or mutual mistake where the parties have reduced their agreement to an integrated writing the parole evidence rule operates to exclude evidence of all prior or contemporaneous negotiations between the parties offered to contradict or modify the terms of their writing." Lopez v. Platinum Volkswagen, 26 N.Y.S3d 214 (App. Term, 9th and 10th Jud. Dists. 2015).

Additionally, when a merger clause plainly states that the written agreement constitutes the parties' complete and final understanding, it generally precludes the use of parol evidence offered to show a contrary intent. 1450 Broadway, LLC v. Tripoint Capital Advisors LLC, 2022 NY Misc. LEXIS 438 (NY Cnty. Sup. Ct. Jan 28, 2022). Such a clause is contained in paragraph 29 of the Lease in this case, and therefore the Court declines to consider any extrinsic evidence to the contrary.

Based on the foregoing, the Court finds Respondent was responsible for performing the necessary repairs to both the parking lot and the roof. By withholding rent due to the need for these repairs, Respondent failed to comply with the terms of the lease and is therefore in default.

i. Constructive Eviction

Next, the Court turns to Respondent's claim that it was constructively evicted because of Petitioner's refusal to make repairs following a fire at the premises on February 12, 2026.

Constructive eviction arises when a landlord engages in a wrongful act or fails to act, and that conduct substantially deprives the Tenant of the "beneficial use and enjoyment" of all or part of the premises. Barash v. Pennsylvania Term. Real Estate Corp. 26 NY2d 77, 308 N.Y.S 2d 649 (1970). To successfully assert a defense of constructive eviction, the tenant must vacate the portions of the premises alleged to be affected within a reasonable period of time. International Dev. Inst. V. Westchester Plaza, LLC 194 AD3d 411 (1st Dep't 2021)

As a potential remedy to constructive eviction cases, Real Property Law § 227 provides that where a property is destroyed or otherwise rendered unfit for occupancy by no fault of the tenant, the tenant may surrender possession and terminate the rental agreement.

However, a tenant may waive its rights under § 227 where the lease expressly provides an alternative remedy. Hudson Towers Hous. Co., Inc. v. VIP Yacht Cruises, Inc. AD3d 413 (1st Dep't 2009). In such circumstances, the terms of the negotiated lease prevail. 4261 Realty Holding LLC v. DB Real Estate Assets II LLC, 980 N.Y.S2d 275 (Nassau Cnty. Dist. Ct. 2013).

Where a commercial tenant waives its rights under RPAPL § 227, the tenant may not claim constructive eviction and is instead limited to the remedies set forth in the lease.

Paragraph 27 of the Lease (FIRE CLAUSE) provides specific remedies for the Petitioner should a fire or other hazardous condition occur at the premises that causes damages. By its terms, Respondent is required to immediately notify Petitioner of any such occurrence and thereafter may choose to terminate the Lease should the costs of repairing the premises exceed 25% of the replacement cost of the building. To elect to terminate the Lease, Respondent must provide written notice to Petitioner within thirty days of the notice. Should the Respondent choose not to terminate the Lease, Petitioner must provide Respondent notice within thirty days of the occurrence of its intention to make all necessary repairs and include an estimated date of completion of all repairs. If Petitioner completes any required repairs more than ninety days after the occurrence, Respondent may choose to terminate the lease. In that event, Petitioner must refund all rent that accrued after the date of the occurrence.

Based on the testimony, the Court concludes that Respondent did not comply with paragraph 27 of the Lease. Although Mr. Borawski stated that emails and text messages were sent to Petitioner regarding the damage from the February 12 fire, Ms. Roberts testified that she was unaware of any such communications. Moreover, Respondent did not provide the Court with copies of any correspondence to substantiate its claim.

As the Respondent remained in full continuous possession of the premises and failed to comply with the provisions of paragraph 27 of the subject lease, the Court finds Respondent's assertion of constructive possession to be without merit.

III. JUDGMENT

Now, in view of the foregoing and after due deliberation, it is hereby

ORDERED, that Petitioner's request for a warrant of eviction and judgment of possession is GRANTED; and it is further

ORDERED, that the Court will take proof on the issue of damages on August 31, 2026, at 10:00 a.m., and it is further

ORDERED, that no judgment will be entered until after the hearing to determine the amount of damages.

This constitutes the Decision and Order of this Court.

DATED: August 19, 2026

HON. F. CHRISTOPHER GIRUZZI

CITY COURT JUDGE

F. Christopher Giruzzi, J.