RUBIN v. LESHNER

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

Dr. L. Bernard RUBIN, Plaintiff-Appellant, v. Dr. Mark LESHNER, Defendant-Respondent.

Decided: January 11, 2007

ANDRIAS, J.P., FRIEDMAN, SULLIVAN, NARDELLI, MALONE, JJ. Law Offices of Mitchell P. Heaney, P.C., New York (Mitchell P. Heaney of counsel), for appellant. Decker, Decker, Dito & Internicola, LLP, Staten Island (Frank J. Dito, Jr. of counsel), for respondent.

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered January 12, 2006, which denied plaintiff prime tenant's motion for partial summary judgment against defendant subtenant as to the first, fourth, fifth, sixth and seventh causes of action, unanimously reversed, on the law, without costs, the motion granted on the issue of liability, and the matter remanded for trial on damages as to these causes of action.

 Summary judgment as to the first cause of action, alleging that defendant breached the governing sublease by abandoning the subleased premises, should have been granted.   Neither the issuance of a warrant of eviction, stayed when plaintiff paid the money judgment, nor the 10-day notice demanding payment of “rent in the form of pass along charges,” deprived defendant of the beneficial use and enjoyment of the premises.   As such, defendant has not made out a defense based upon either actual or constructive eviction.

 Further, summary judgment should have also been granted on the fourth, fifth, sixth and seventh causes of action because plaintiff established that, pursuant to the sublease and its extensions, defendant was obligated to pay any rent increases under the prime lease, including those covering real estate taxes, operating expenses, attorneys' fees and court costs.   The sublease and its extensions were unambiguous as to this obligation and the general merger clause in the sublease precluded defendant from arguing that the sublease, as modified by the extensions, did not contain the full agreement of the parties (see New York First Ave. CVS v. Wellington Tower Assoc., 299 A.D.2d 205, 206, 750 N.Y.S.2d 586 [2002], lv. denied 100 N.Y.2d 505, 763 N.Y.S.2d 811, 795 N.E.2d 37 [2003] ).