RING v. ANABIL USA INC

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

Michael RING, et al., Plaintiffs-Respondents, v. ANABIL USA, INC., Defendant-Appellant.

Decided: May 18, 2006

BUCKLEY, P.J., MAZZARELLI, FRIEDMAN, SWEENY, McGUIRE, JJ. Warren S. Hecht, Forest Hills, for appellant. Pollack & Sharan, LLP, New York (Adam Paul Pollack of counsel), for respondents.

Judgment, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered March 25, 2005, which, in an action to recover rent due under a commercial lease, upon the prior grant of plaintiffs' motion for summary judgment, awarded plaintiffs the total sum of $341,346.24, unanimously modified, on the law, to reduce the amount of the award by the amount of the security deposit defendant is entitled to have returned to it, and otherwise affirmed, without costs, and the matter remanded for further proceeding to calculate such offset.

 There are no issues of fact precluding an award of summary judgment to plaintiffs.   The evidence demonstrates that plaintiffs did not consent to defendant's early termination of the lease and, pursuant to the lease, defendant was responsible for the payment of rent and other costs through March 31, 2005.   Defendant is, however, entitled to have the judgment offset as above indicated.

Defendant's additional argument is unavailing.