Deer Hills Hardware, Inc., Respondent-Appellant, v. Conlin Realty Corp., Appellant-Respondent

Deer Hills Hardware, Inc., Respondent-Appellant, v Conlin Realty Corp., Appellant-Respondent. [739 NYS2d 597] [MAJORITY] In an action to rescind a lease and to recover damages for breach of the lease, the defendant appeals from so much of an order of the Supreme Court, Suffolk County (Pitts, J.), dated April 18, 2001, as granted its motion for summary judgment on its counterclaim only to the extent of awarding it $85,000.02 on the counterclaim, and the plaintiff cross-appeals, as limited by its brief, from so much of the order as denied its cross motion for partial summary judgment dismissing the counterclaim, and, in effect, dismissed the complaint. Ordered that the order is affirmed, without costs or disbursements. The Supreme Court properly determined that the lease between the plaintiff tenant and the defendant landlord was surrendered by operation of law as of November 2000 (see Riverside Research Inst. v KMGA, Inc., 68 NY2d 689; Centurion Dev. v Kenford Co., 60 AD2d 96). The plaintiff abandoned the premises during the lease term and the defendant’s conduct indicated its intent to terminate the lease and use the premises for its own benefit. The Supreme Court properly concluded that the defendant accepted the plaintiffs surrender of the premises, and the plaintiff is released from further liability for rent (see Altamuro v Capoccetta, 212 AD2d 904). Moreover, the defendant was properly awarded rent from the plaintiff in the amount of $85,000.02, reflecting rent owed from the second month of the lease through the time of the surrender of the lease by operation of law. Prudenti, P.J., Feuerstein, Luciano and Schmidt, JJ., concur.