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DRAFT FOR ATTORNEY REVIEW — NOT FINAL

Shree Shiv Shakti Corp. v. Khalid Properties, LLC, 106 A.D.3d 1434 (2013)

Citation
Shree Shiv Shakti Corp. v. Khalid Properties, LLC, 106 A.D.3d 1434 (2013)
Parent Document
Shree Shiv Shakti Corp. v. Khalid Properties, LLC, 106 A.D.3d 1434 (2013)
Jurisdiction
New York (state)
Effective Date
2013-05-30

Full Text

1,598 chars
Ultimately, to be successful on both the cause of action for trespass (see Spellburg v South Bay Realty, LLC, 49 AD3d 1001, 1002 [2008]; Golonka v Plaza at Latham, 270 AD2d 667, 669 [2000]) and the cause of action for constructive eviction (see Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77, 83 [1970]; Joylaine Realty Co., LLC v Samuel, 100 AD3d 706, 707 [2012]), plaintiff will be required to demonstrate that the terms of the lease did not authorize Khalid to enter the premises and replace the USTs. In support of the motion for summary judgment, Khalid cited several provisions that it alleged did permit it to enter and take such action, including section 19, which *1436reserved to Khalid the right to enter and inspect the premises and “to make such repairs, additions or alterations as it shall deem necessary for the safety, preservation or restoration of the building or improvements” thereon; section 23 (e), which required plaintiff to cooperate with Khalid and allow it to conduct “investigations, examinations, tests, inspections, and reviews of the [pjremises ... in order to evaluate any actual or potential environmental conditions or problems”; and section 40, which made Khalid responsible for the registration and “maintenance and repair of the UST [s]ystem.” This evidence was sufficient to meet Khalid’s initial burden of establishing that it was authorized to enter the premises and perform necessary repairs and maintenance, including the inspection and replacement of the USTs and the remediation of any environmental contamination, without plaintiffs consent.