Beyond Noble, Inc. v. 6056 Leasehold Co. , 754 N.Y.S.2d 540 ( 2003 )

Order, Supreme Court, New York County (Marylin Diamond, J.), entered November 27, 2001, which granted defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (1), unanimously affirmed, without costs.

The complaint was properly dismissed since the terms of the parties’ lease conclusively refute plaintiffs claim that the lease was breached when defendant landlord withheld from plaintiff tenant permission for alterations necessary to render the demised premises suitable for use as a nail salon. Pursuant to the lease, defendant was absolutely entitled to withhold permission for the proposed alterations and, accordingly, no covenant of good faith requiring consent^to the proposed alterations may be implied (see Murphy v American Home Prods. Corp., 58 NY2d 293; Sheth v New York Life Ins. Co., 273 AD2d 72, 73). Indeed, plaintiff in the lease expressly agreed to take the premises “as is” and acknowledged that defendant had made no express or implied warranties that the premises could be used for plaintiff’s intended purposes. Concur — Andrias, J.P., Sullivan, Rosenberger, Friedman and Gonzalez, JJ.