Appeal from an order of the Supreme Court, Ontario County(Frederick G. Reed, A.J.), entered December 2, 2016. The ordergranted plaintiff leave to reargue, and upon reargument, granted thatpart of the motion of plaintiff for summary judgment with respect toliability.It is hereby ORDERED that the order so appealed from isunanimously modified on the law by denying those parts of the motionwith respect to the first through sixth causes of action, and withrespect to the seventh cause of action except insofar as it is basedupon defendant’s removal of a steam boiler furnace, a hot waterheater, a walk-in cooler, a two-sink stainless steel unit, a singledoor freezer, a small refrigerator, an under work line, a two-slidingdoor refrigerator, three fryer units, one broiler, a Hobart branddishwasher, a milk cooler, an iced tea machine, and various tables,chairs, bar stools, booster seats, and high chairs, and as modifiedthe order is affirmed without costs.Memorandum: This action arises out of a lease between plaintiff,as landlord, and defendant, as tenant, for a commercial property thatwas to be operated as a restaurant. The fifth paragraph of the leaseprovided that defendant had examined the premises, and accepted it inthe condition that it was in at the time of lease commencement. Thefifth paragraph further provided that defendant would “quit andsurrender the premises at the end of the demised term in as goodcondition as on the commencement of th[e] lease, as the reasonable usethereof will permit.” The thirtieth paragraph of the lease providedthat “[t]he demised premises herein is a fully equipped restaurant andbar including furniture, equipment, fixtures and other personalproperty[,] including but not limited to those items set forth inExhibit A attached hereto . . . Tenant agrees that all items containedin Exhibit A are in good condition and fully operable and are acceptedby Tenant in ‘as is’ condition. Tenant must keep, and at the end ofthe Term return, all of said fixtures and personal property in goodorder and repair, reasonable wear and tear excepted. Tenant shall beresponsible for replacement of any items contained in Exhibit A whichare lost, stolen, damaged or become obsolete or worn out during thelease term.”After defendant vacated and surrendered the leased premises atthe end of the lease term, plaintiff commenced this action andasserted seven causes of action, including for conversion and breachof lease based on allegations that defendant improperly removedrestaurant equipment and fixtures when he vacated the premises.Following discovery, plaintiff moved for summary judgment on thecomplaint, and Supreme Court denied the motion. Plaintiffsubsequently sought leave to reargue the motion and, upon reargument,the court granted that part of the motion with respect to liability.We note that the court failed to specify in either its bench decisionor written order the cause or causes of action that served as thebasis for granting the motion in part.As a preliminary matter, we agree with defendant that thephotographs submitted by plaintiff on its original motion were notproperly authenticated (see generally People v Byrnes, 33 NY2d 343,347 [1974]), and that plaintiff’s attempt to remedy that defect in itsreply papers was improper (see David v Bryon, 56 AD3d 413, 414-415 [2dDept 2008]). We note, however, that our decision herein is not basedupon any photographs in the record.We further agree with defendant that the court erred in grantingthe motion with respect to liability on the first through sixth causesof action, and we therefore modify the order accordingly. Evenassuming, arguendo, that plaintiff met its initial burden on themotion (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324[1986]), we conclude that defendant’s submissions raised triableissues of fact (see Zuckerman v City of New York, 49 NY2d 557, 562[1980]), particularly on the issue whether he left the premises in acondition that conformed to the lease provisions.Finally, we conclude that the court erred in granting the motionwith respect to liability on the seventh cause of action, for breachof lease, except to the extent that it is based on certain items thatdefendant admitted removing or failing to replace. Specifically,defendant admitted in his interrogatory responses that, upon vacatingthe premises, he removed or failed to replace the following items thatwere present at the premises when he took possession: a steam boilerfurnace, a hot water heater, a walk-in cooler, a two-sink stainlesssteel unit, a single door freezer, a small refrigerator, a smallfreezer described in Exhibit A as an “under work line,” a two-slidingdoor refrigerator, three fryer units, one broiler, a Hobart branddishwasher, a milk cooler, an iced tea machine, and various tables,chairs, bar stools, booster seats, and high chairs. Defendant’sadmissions establish as a matter of law that he breached the fifth andthirtieth paragraphs of the lease agreement with respect to only thoseitems, and we therefore further modify the order accordingly.In light of our determination, plaintiff’s contention concerningspoliation is academic.Entered: June 8, 2018 Mark W. BennettClerk of the Court
