SORBARO COMPANY v. CAPITAL VIDEO CORPORATION (1997)

In an action, inter alia, to rescind a lease, the defendant appeals from so much of a judgment of the Supreme Court, Dutchess County (Beisner, J.), entered August 9, 1996, which, after a nonjury trial, rescinded the lease and dismissed the defendant's second through sixth counterclaims.

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

The plaintiff-landlord commenced this action to rescind a commercial lease with the defendant-tenant after discovering that the defendant intended to use the demised premises primarily to sell videotapes, magazines, and related materials of a sexually-explicit nature.   The defendant counterclaimed for damages arising from its eviction from the premises after the plaintiff discovered the intended use of the premises.

The record supports the Supreme Court's finding that the defendant, knowing the consequence of disclosing the true nature of its operation, fraudulently represented its intended use of the leased premises to the plaintiff, and falsely represented that it had no other locations in the State, in order to induce the plaintiff into signing a lease (see, Jo Ann Homes at Bellmore v. Dworetz, 25 N.Y.2d 112, 302 N.Y.S.2d 799, 250 N.E.2d 214;  Nathanson & Co. v. Marinello, 192 A.D.2d 575, 576, 596 N.Y.S.2d 133).  Accordingly, the court properly ordered the lease rescinded.   Further, because the defendant was not wrongfully evicted from its leasehold, its counterclaims arising from the alleged wrongful eviction were properly dismissed (see, Dzubey v. Teachers' Coll., 87 A.D.2d 783, 449 N.Y.S.2d 489).

We pass on no other issue.

MEMORANDUM BY THE COURT.