805 THIRD AVENUE CO v. ERNST YOUNG LLP

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Supreme Court, Appellate Division, First Department, New York.

805 THIRD AVENUE CO., Petitioner-Appellant, v. ERNST & YOUNG LLP, etc., et al., Respondents-Respondents.

Decided: May 13, 2003

BUCKLEY, P.J., ANDRIAS, SAXE, LERNER and MARLOW, JJ. Donald A. Harwood, for Petitioner-Appellant. Grant J. Esposito, for Respondents-Respondents.

Order and judgment (one paper), Supreme Court, New York County (Herman Cahn, J.), entered October 8, 2002, which, in a turnover proceeding to enforce a judgment for rent arrears, inter alia, denied the application and dismissed the petition, unanimously affirmed, with costs.

Petitioner landlord claims that respondent subtenant abandoned the premises owing respondent tenant rent.   It appears that at all relevant times, the tenant was wholly owned by the subtenant and under its complete control;  that petitioner's lease with the tenant permitted a subletting to the subtenant, identified by name and characterized as the “Permitted Occupant”;  and that such lease also provided that “[n]either the individual executing this lease ․ nor any other person or party, whether disclosed or undisclosed, shall have any personal liability or obligation by reason of any default by Tenant or any of Tenant's covenants and agreements contained in this lease.”   In view of this broad non-recourse clause, the application must be denied regardless of whether the subtenant left the premises owing the tenant rent.