State Warehouse Co. v. Standard Brands Inc. 56 A.D.2d 829

Order, Supreme Court, New York County, entered June 2, 1976, granting plaintiff summary judgment on the first and second causes of action, and directing an assessment of damages, is unanimously affirmed. Respondent shall recover of appellant $60 costs and disbursements of this appeal. Nothing in the lease agreement relieved defendant landlord from its legal obligation to deliver possession to the tenant at the commencement of the lease term, as modified. This obligation was not excused by the clause in the lease relating to abatement of rent, which appears to be a provision for liquidated damages. The validity of that clause, and its extent and limitations, will presumably be issues in the damage phase of the case. Nor is the landlord’s obligation to deliver possession excused by the provision of the lease giving the tenant the right to cancel the lease in certain contingencies. The foregoing questions are merely questions of interpretation of a written instrument, questions of law which do not defeat summary judgment. The affidavits do not raise any factual issue sufficient to warrant a trial as to the existence of defenses of impossibility or mistake; the case is an ordinary case of inability by defendant landlord to perform its contractual obligation. Concur—Kupferman, J. P., Birns, Silverman and Capozzoli, JJ.