In an November 22, 2011, decision by Justice Kitzes, the court granted defendant’s motion to dismiss for failure to state a cause of action. Plaintiff-restaurant tenant sued defendant-landlord for allegedly failing to prepare the premises for compliance with certain restaurant regulations, including seating capacity for up to 150 customers. Defendant moved to dismiss based on specific provisions in the lease, which expressly placed the burden of such compliance on plaintiff in several “as is” provisions. Based on the unambiguous lease provisions, the court granted the motion, finding that defendant was under no obligation to make any changes to the premises and that any alleged representations to the contrary were specifically merged into the lease documents.
Midorimatsu, Inc. v Hui Fat Co., Sup Ct, Queens County, November 22, 2011, Kitzes, J., Index No. 16053/2011