FORTY FOUR EIGHTEEN JOINT VENTURE v. RARE MEDIUM INC (2005)

Order, Supreme Court, New York County (Rosalyn Richter, J.), entered October 18, 2004, which, to the extent appealed from, granted plaintiff landlord's motion for summary judgment on the issue of defendant tenant's liability for rent, unanimously affirmed, with costs.

 The parties' lease states that landlord shall not unreasonably withhold consent to an assignment “provided that ․ Tenant shall not be in default in the performance of any of its obligations under this lease.”   The motion court correctly held that such provision unambiguously entitled landlord to withhold consent to an assignment at a time when tenant's rent was in arrears, and that there is no merit to tenant's interpretation that landlord was required to give its consent conditioned on tenant's payment of the arrears at the assignment's closing (see Leeirv Corp. v. S & E Realty Co., 178 A.D.2d 403, 577 N.Y.S.2d 106 [1991];  cf. 410 Sixth Ave. Foods v. 410 Sixth Ave., 197 A.D.2d 435, 436-437, 602 N.Y.S.2d 835 [1993] ).   Tenant's claim that landlord accepted a surrender of the lease is unsupported by evidence that landlord acted in a manner inconsistent with the landlord-tenant relationship (see Riverside Research Inst. v. KMGA, Inc., 68 N.Y.2d 689, 691-692, 506 N.Y.S.2d 302, 497 N.E.2d 669 [1986] ), and is otherwise without merit.