Commercial restaurant claimed that it was excused from paying the landlord months of rent as a result of landlord’s alleged refusal to correct sewage backup and the restaurant’s alleged inability to use the basement space as a result of the alleged sewage leaks. Tenant claimed that it could not use its Cantonese restaurant for customers or parties because of constant leaks and flooding in the basement storage area, including the constant flooding of the toilet. Tenant also claimed that water did not drain properly and that the air conditioning unit, ice machine and wet bar were unusable. The restaurant claimed that it had to switch from a Cantonese to Thai cuisine because of the lack of water pressure. Finally, tenant claimed that customers would not eat at the restaurant as a result of odors from another commercial tenant in the building. Tenant claimed that as a result it lost approximately $20,000 a month in earnings.
Landlord quickly pointed out that the lease requires that the tenant conduct most of these repairs itself. Landlord also put into evidence 4 bounced checks showing that the failure to pay resulted from a downturn in the market rather than repair issues. Using photos, landlord demonstrated that tenant had never stopped using the premises. As a preventive measure, counsel advised landlord to keep a log of all complaints made by tenant, and at trial landlord demonstrated that during all this time the tenant only complained twice about repairs needed. Landlord also showed the possibility that the plumbing problems could have come from the amount of debris blocking the food drain rather than faulty equipment or pipes.
In closing arguments, Adam Leitman Bailey pointed out that the commercial tenant assumed the lease “as is” defying tenant’s testimony that these problems existed from the first day of the lease. In addition, landlord provided case law demonstrating that tenant’s testimony should be discredited as it failed to have an expert witness take the stand showing the alleged problems at the premises. Counsel also pointed out that the tenant failed to provide one piece of evidence supporting tenant’s allegations, including the lack of any photos, receipts, and repair invoices. Counsel also concluded that tenant failed to provide proof of its business losses.
The Civil Court judge used all of the above reasons to deny the tenant any relief, rent abatement or any monies discounted from the rent owed. Landlord received a money judgment for the entire amount of rent owed as well as prevailing in its attorney fees motion and collecting all of landlord’s attorney fees.
Adam Leitman Bailey and Carolyn Rualo of Adam Leitman Bailey, P.C. represented the landlord in this trial and in attorney fees hearing.