L B 595 Madison, Inc. v. Ravagnan

Full title: L B 595 MADISON, INC., Appellant, v. MARIO RAVAGNAN, Respondent

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Sep 4, 1997

242 A.D.2d 413 (N.Y. App. Div. 1997)

662 N.Y.S.2d 29

Opinion

September 4, 1997

Appeal from the Supreme Court, New York County (Carol Huff, J.).

Defendant's first affirmative defense claiming that plaintiff's acceptance of defendant's surrender of the premises estops plaintiff from seeking any rent payments should be dismissed since defendant's early departure from the premises is not unequivocally referable to an oral modification of the lease, which, by its terms, could only be modified in writing ( see, General Obligations Law § 5-703; § 15-301 [1]; Riverside Research Inst. v. KMGA, Inc., 108 A.D.2d 365, 368, affd 68 N.Y.2d 689). Defendant's claim that he was forced to abandon the premises due to a lack of elevator service, air conditioning and "continuous" water leakage is well pleaded and not yet ripe for summary disposition. We have considered plaintiff's remaining contentions and find them to be without merit. Concur — Rosenberger, J.P., Wallach, Nardelli, Rubin and Colabella, JJ.