CRE Case Roundup

In a landlord's action for unpaid rent, the tenant appealed from the New York Supreme Court's judgment, after a nonjury trial, awarding landlord $76,567 in unpaid rent and interest. The Appellate Division modified to vacate the award of damages, holding that tenant had not abandoned the premises, so that the lease provision entitling landlord to retake possession in case of abandonment had not been triggered.

At trial, the landlord testified that he drove by the tenant's restaurant several times during May or June of 2018 and found that it was closed, and also testified that the tenant was behind on the rent, but was not sure of the total amount of rent arrears. The landlord then changed the lock on the building and started searching for a new tenant. The tenant testified that he had operated the restaurant the day before landlord's lockout, and also entered into the record photographs of the premises at the time the locks were changed. The photos depicted equipment and liquor bottles on display at the bar. The tenant admitted that he had told the landlord he wanted to terminate the lease, but also explained that his intent as to see whether the landlord was open to ending the lease early. The tenant testified that he would have continued to operate the business until he could find a buyer if landlord had rejected his offer. On this evidence, the Supreme Court found landlord more credible than tenant, and held that the landlord had lawfully exercised the right reserved in the lease to re-enter in the event tenant abandoned the premises. The court then entered judgment for unpaid rent through October 2018. The tenant appealed.