ARCHIVES v. Jeffrey Cohen, Defendant–Respondent (2023)

Judgment, Supreme Court, New York County (Paul A. Goetz, J.), entered February 16, 2023, bringing up for review an order, same court and Justice, entered on or about January 31, 2023, which, to the extent appealed from, denied in part plaintiff's motion for summary judgment against defendant Jeffrey Cohen (guarantor), and granted in part defendant guarantor's cross-motion for summary judgment dismissing so much of the complaint as asserted against him for unpaid use and occupancy accruing after the April 30, 2020 expiration of the lease, unanimously affirmed, with costs.  Appeal from the aforesaid order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

The court correctly determined that defendant guarantor was not liable for use and occupancy charges accruing after the end of the lease term, because plaintiff failed to establish that the underlying debt extended to those charges (see White Rose Food v. Saleh, 99 N.Y.2d 589, 591, 758 N.Y.S.2d 253, 788 N.E.2d 602 [2003];  Paganini v. 40 W. 127th St., LLC, 204 A.D.3d 473, 474, 167 N.Y.S.3d 61 [1st Dept. 2022]).  Plaintiff served defendant tenant with a notice of expiration and nonrenewal of the lease and ordered tenant to vacate on or before June 30, 2020.  While the guaranty provided for liability pursuant to supplemental agreements between plaintiff and tenant regarding the premises, it did not specifically cover a tenant holding over (see Lo–Ho LLC v. Batista, 62 A.D.3d 558, 560, 881 N.Y.S.2d 33 [1st Dept. 2009];  665–75 Eleventh Ave. Realty Corp. v. Schlanger, 265 A.D.2d 270, 270–271, 697 N.Y.S.2d 270 [1st Dept. 1999]).

The lease does provide for payment of use and occupancy after expiration of the lease term at a rate of at least 125% of the last monthly rental rate.  However, this provision is insufficient to hold defendant guarantor responsible for use and occupancy under the lease after it expires (see Elite Gold, Inc. v. TT Jewelry Outlet Corp., 31 A.D.3d 338, 340, 819 N.Y.S.2d 516 [1st Dept. 2006]).  Plaintiff does not satisfactorily explain how an existing term of the lease regarding potential post-lease use and occupancy qualifies as a separate supplemental agreement as defined in the guaranty.

We have considered plaintiff's remaining arguments and find them unavailing.