TSS-Seedman's, Inc. v. Nicholas

Weinstein and Balletta, JJ.,

concur in part and dissent in part and vote to modify the order and judgment, on the law, *225by deleting all decretal paragraphs thereof except the last decretal paragraph, and substituting therefor a provision denying the defendant’s motion for summary judgment, and as so modified, to affirm the order and judgment, with the following memorandum: Contrary to the defendant’s assertions, the plaintiff was in substantial compliance with the lease on July 31, 1986. While paragraph second of the lease required the plaintiff to comply with regulations made by governmental authorities, the intent of such a covenant is to require the tenant to immunize the landlord from the actions of the authorities by keeping the premises in compliance with proper standards of health and safety (see, Vanguard Diversified v Review Co., 35 AD2d 102, 105, on remand 67 Misc 2d 214). The defendant has failed to demonstrate that the violations complained of had any impact on the safety of the premises or health of its occupants, or that a failure to remove the violations on the property placed her at risk of further action from governmental authorities. Triable issues of fact remain on the issue of whether the defendant was actually injured by the failure of the plaintiff to immediately act to remove the violations from the record, and on the issue of whether the plaintiff can establish sufficient improvements to the premises which would render loss of the lease a forfeiture, which may then entitle it to equitable relief (see, J. N. A. Realty Corp. v Cross Bay Chelsea, 42 NY2d 392).