You are here: / / QUESTIONS OF FACT WHETHER TENANT ENTITLED TO RESCIND LEASE BECAUSE CERTIFICATE...
,

QUESTIONS OF FACT WHETHER TENANT ENTITLED TO RESCIND LEASE BECAUSE CERTIFICATE OF OCCUPANCY PROHIBITED TENANT’S USE OF THE PROPERTY FOR COMMERCIAL PURPOSES.

The First Department, in a full-fledged opinion by Justice Tom, reversing Supreme Court, determined questions of fact precluded the granting of landlord's cross-motion for summary judgment dismissing plaintiff-tenant's rescission action (alleging impossibility, fraud, misrepresentation and frustration of purpose). By the terms of the lease the tenant was prohibited from any use of the premises which violated the certificate of occupancy (CO). The lease required tenant to use the premises solely for a commercial purpose (executive recruiting firm). However the CO required that the premises be used solely as residential property. The First Department distinguished the line of cases which enforced leases where the only objection to the lease was a problem with the CO:

… [T]here are issues of fact as to whether plaintiff's cause of action for rescission can be proved. While the purpose of the lease was for the space to be used as an office and plaintiff is in fact prohibited from any other use, the lease also prohibits plaintiff from using the premises in violation of the CO, and the CO itself prohibits commercial use of the space. Therefore, plaintiff properly raises the excuse of impossibility of performance as its ability to perform under the lease was destroyed by law … . Absent defendants' willingness to alter the CO it was impossible for plaintiff to perform its obligations under the lease, and the evidence raises an issue of fact as to whether defendants were willing to cooperate in this regard. * * *

… [T]here is an issue of fact as to whether the lease should be terminated on the ground of frustration of purpose. In order to invoke this defense, “the frustrated purpose must be so completely the basis of the contract that, as both parties understood, without it, the transaction would have made little sense”… . Jack Kelly Partners LLC v Zegelstein, 2016 NY Slip Op 03820, 1st Dept 5-12-16

LANDLORD-TENANT (QUESTIONS OF FACT WHETHER TENANT ENTITLED TO RESCIND LEASE BECAUSE CERTIFICATE OF OCCUPANCY PROHIBITED USE OF THE PROPERTY FOR COMMERCIAL PURPOSES)/CONTRACT LAW (LEASES, QUESTIONS OF FACT WHETHER TENANT ENTITLED TO RESCIND LEASE BECAUSE CERTIFICATE OF OCCUPANCY PROHIBITED USE OF THE PROPERTY FOR COMMERCIAL PURPOSES)/RESCISSION (LEASES, QUESTIONS OF FACT WHETHER TENANT ENTITLED TO RESCIND LEASE BECAUSE CERTIFICATE OF OCCUPANCY PROHIBITED USE OF THE PROPERTY FOR COMMERCIAL PURPOSES)

You might also like
CONFLICTING EVIDENCE OF EXISTENCE OF PUDDLE CREATED A CREDIBILITY ISSUE IN THIS SLIP AND FALL CASE WHICH COULD NOT BE RESOLVED WITHOUT TRIAL.
SUPREME COURT DID NOT HAVE THE DISCRETION TO GRANT PLAINTIFF LEAVE TO AMEND A COMPLAINT AFTER THE COMPLAINT HAD BEEN DISMISSED FOR LACK OF STANDING BY THE APPELLATE DIVISION (FIRST DEPT).
THE NEGLIGENCE ACTION AGAINST THE AGENCY WHICH PLACED A BABY IN A FOSTER HOME WHERE THE BABY WAS INJURED BY THE TEENAGED BOYFRIEND OF THE FOSTER MOTHER’S DAUGHTER PROPERLY SURVIVED SUMMARY JUDGMENT (FIRST DEPT).
SENTENCING JUDGE’S MISINFORMATION ABOUT THE LENGTH OF THE PRISON SENTENCE THE JUVENILE OFFENDER COULD RECEIVE IF SHE FAILED TO MEET THE CONDITIONS IMPOSED BY A PLEA AGREEMENT RENDERED THE PLEA INVOLUNTARY, THE MOTION TO WITHDRAW THE PLEA SHOULD HAVE BEEN GRANTED (FIRST DEPT).
STATEMENT SHOULD NOT HAVE BEEN ADMITTED AS A PROMPT OUTCRY, CONVICTION REVERSED.
SCAFFOLD TIPPED PINNING PLAINTIFF’S HAND AGAINST A WALL; SPECULATIVE EVIDENCE DID NOT RAISE A QUESTION OF FACT ABOUT PLAINTIFF’S ACTIONS BEING THE SOLE PROXIMATE CAUSE; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION (FIRST DEPT).
APPELLATE DIVISION REDUCED DEFENDANT’S SENTENCE USING ITS PLENARY POWER, DESPITE THE FACTS THAT (1) THE SENTENCE WAS WITHIN PERMISSIBLE LIMITS, (2) THE SENTENCING COURT DID NOT ABUSE ITS DISCRETION, AND (3) DEFENDANT HAD AN EXTENSIVE CRIMINAL HISTORY (FIRST DEPT).
STEP WAS OPEN AND OBVIOUS AND THEREFORE WAS NOT ACTIONABLE IN THIS SLIP AND FALL CASE (FIRST DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

HEARING OFFICER IMPROPERLY LIMITED THE NUMBER OF WITNESS PETITIONER COULD CALL,... PISTOL PERMIT PROPERLY REVOKED BY FAMILY COURT.