595 MADISON INC v. RAVAGNAN (1997)

Heath B. Kushnick Order, Supreme Court, New York County (Carol Huff, J.), entered on or about July 19, 1996, which, in an action by a landlord against a tenant for breach of a commercial lease, inter alia, denied plaintiff's motion for summary judgment on the issue of defendant's liability for rent and dismissed defendant's counterclaim for constructive eviction, unanimously modified, on the law and the facts, to dismiss defendant's first affirmative defense of surrender and acceptance of the leased premises, and otherwise affirmed, without costs.

Defendant's first affirmative defense claiming that plaintiff's acceptance of defendant's surrender of the premises estops plaintiff from seeking any rent payments should be dismissed since defendant's early departure from the premises is not unequivocally referable to an oral modification of the lease, which, by its terms, could only be modified in writing (see, General Obligation Law § 5-703[1];  § 15-301[1];  Riverside Research Inst. v. KMGA, Inc., 108 A.D.2d 365, 368, 489 N.Y.S.2d 220, aff'd 68 N.Y.2d 689, 506 N.Y.S.2d 302, 497 N.E.2d 669).   Defendant's claim that he was forced to abandon the premises due to a lack of elevator service, air conditioning and “continuous” water leakage is well pleaded and not yet ripe for summary disposition.   We have considered plaintiff's remaining contentions and find them to be without merit.

MEMORANDUM DECISION.