ESRT 250 WEST 57TH ST., L.L.C., plf-res, v. 13D/WEST 57TH LLC def-ap

3558. ESRT 250 WEST 57TH ST., L.L.C., plf-res, v. 13D/WEST 57TH LLC def-ap — 13D/WEST 57TH LLC, Counterclaim plf-ap, v. ESRT 250 WEST 57TH ST., L.L.C. Counterclaim def-res — Westerman, Ball, Ederer, Miller, Zucker & Sharfstein, LLP, Uniondale (Jeffrey A. Miller of counsel), for ap — Sternbach, Lawlor & Rella LLP, New York (Anthony J. Rella of counsel), for res — Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered March 4, 2016, which, insofar as appealed from as limited by the briefs, granted the motion of plaintiff and counterclaim defendants' to dismiss the first, second and third counterclaims and the fourth, fifth and part of the third affirmative defenses, unanimously affirmed, without costs.

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3558. ESRT 250 WEST 57TH ST., L.L.C., plf-res, v. 13D/WEST 57TH LLC def-ap — 13D/WEST 57TH LLC, Counterclaim plf-ap, v. ESRT 250 WEST 57TH ST., L.L.C. Counterclaim def-res — Westerman, Ball, Ederer, Miller, Zucker & Sharfstein, LLP, Uniondale (Jeffrey A. Miller of counsel), for ap — Sternbach, Lawlor & Rella LLP, New York (Anthony J. Rella of counsel), for res — Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered March 4, 2016, which, insofar as appealed from as limited by the briefs, granted the motion of plaintiff and counterclaim defendants’ to dismiss the first, second and third counterclaims and the fourth, fifth and part of the third affirmative defenses, unanimously affirmed, without costs.

Defendants, a commercial tenant and its principal, asserted counterclaims and affirmative defenses predicated on the violation of the covenant of quiet enjoyment or constructive eviction. Those claims were properly dismissed, as the only harm suffered was by tenant’s purported subtenant, which subtenancy was wholly unauthorized, in violation of the lease (see Excel Graphics Tech. v. CFG/AGSCB 75 Ninth Ave., 1 AD3d 65, 70 [1st Dept 2003], lv dismissed 2 NY3d 794 [2004]). Tenant cannot recover for interference by landlord with an unlawful subtenancy (cf. 150 Greenway Terrace, LLC v. Cullen, 14 Misc 3d 130[A], 2007 NY Slip Op 50020[U] [App Term, 2d Dept 2007]). Defendants’ claims are further barred by the clause in the lease that prohibits landlord from being liable for the acts of other tenants (see Alpha Holding Corp. v. Brescio, 2009 NY Slip Op 30936[U] [Sup Ct, NY County 2009]).

ESRT 250 WEST 57TH ST., L.L.C., plf-res, v. 13D/WEST 57TH LLC def-ap

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