DIAMOND REALTY MANAGEMENT LLC v. YAKUB GOLD INC (2024)

Amended order, Supreme Court, New York County (Richard Latin, J.), entered February 6, 2023, which granted plaintiff's motion for summary judgment, deemed an appeal from judgment, same court and Justice, entered February 14, 2023, which entered judgment in favor of plaintiff and against defendants for rent and additional rent of $625,242.20 from April 2020 through November 2022, $44,861.70 in reasonable attorneys’ fees, and pre-judgment interest at the statutory rate from April 2020, for a total sum of $832,427.51, and so considered, said judgment unanimously affirmed, with costs.

Although a landlord may not recover future rent absent an acceleration clause (see 3 rd & 60th Assoc.  Sub LLC v Zavolunov, 223 AD3d 488, 491 [1st Dept 2024];  Utility Garage Corp. v. National Biscuit Co., 71 A.D.2d 578, 578–579 [1st Dept 1979]), this case does seek future taxes and rents “for the remainder of the lease term” (id. at 578), but rent and additional rent only through the date of judgment.

We reject defendant's argument that Supreme Court improperly granted an informal motion to amend the pleadings.  No amendment was necessary, as the first cause of action asserted in the complaint sought all rent and additional rent “which may become due and owing to Plaintiff by Defendants from December 1, 2020 through and including the date Plaintiff obtains judgment against Defendants” (see Castor Petroleum, Ltd. v Petroterminal de Panama, S.A., 90 AD3d 424, 424 [1st Dept 2011]).  Even if required, the pleadings were correctly conformed to the proof (see e.g. Libeson v. Copy Realty Corp., 167 A.D.2d 376, 377 [2d Dept 1990]).