NPR, LLC v. K.A.B.B., Inc. , 811 N.Y.S.2d 706 ( 2006 )

In an action, inter alia, to recover unpaid rent, the defendant appeals from a judgment of the Supreme Court, Orange County (Peter C. Patsalos, J.), entered September 9, 2004, which, upon an order of the same court dated June 18, 2004, granting the plaintiff’s motion for summary judgment, is in favor of the plaintiff and against it in the principal sums of $126,095.10 for unpaid rent, $1,241.24 for damage to property, and $32,175 for an attorney’s fee.

Ordered that the judgment is affirmed, with costs.

In June 2001 the plaintiff landlord completed efforts to remedy an environmental hazard (toxic mold) that existed in premises leased to the defendant tenant. By letter dated October 16, 2001, the defendant tenant complained that the efforts had been insufficient to eliminate the environmental hazard. Consequently, the defendant asserted that it would terminate its lease as soon as it secured new space. The plaintiff commenced this action, inter alia, to recover unpaid rent after the defendant vacated the premises prior to the expiration of the lease. The defendant appeals from a judgment entered in favor of the plaintiff upon the grant of summary judgment. We affirm.

The plaintiff demonstrated its prima facie entitlement to judgment as a matter of law by offering evidence that the toxic mold condition had been timely abated and that the demised premises did not pose an environmental hazard. In opposition, the defendant failed to raise a triable issue of fact that it was constructively evicted from the premises or otherwise permissibly terminated the lease (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

The defendant’s remaining contentions are without merit. Cozier, J.P., Ritter, Rivera and Fisher, JJ., concur.