Summary Judgment Granted: Commercial Tenant Ejected After Refusing to Vacate — And Made to Pay Attorney's Fees

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When a commercial tenant stops paying rent, ignores a notice to cure, and then refuses to leave after the lease is terminated — what happens next? In a 2023 decision by Kings County Supreme Court, Hecht Law Group secured summary judgment on behalf of a Brooklyn commercial property owner, resulting in a court order directing the Kings County Sheriff and City Marshal to physically remove the tenant from the premises. The court also awarded attorney's fees against the tenant and dismissed the tenant's counterclaim with prejudice.

This case is a blueprint for how New York landlords can use the courts to decisively resolve a holdover situation — and what commercial tenants should understand about the limits of the defenses they commonly try to raise.

What Happened: Non-Payment, Termination, and a Tenant Who Refused to Leave

Our client purchased a Brooklyn commercial property and, as part of the acquisition, was assigned all rights under an existing commercial lease for space on the building's third floor. The tenant had been in place since a 2016 lease agreement with the prior owner.

Beginning in February 2021, the tenant stopped paying rent entirely. Our client served a formal notice demanding the tenant cure the default. The tenant failed to do so. Pursuant to the lease's termination provision, our client terminated the lease effective April 16, 2021.

Despite the termination, the tenant refused to vacate and continued occupying the premises without paying rent or use and occupancy charges. Our client commenced litigation in May 2021 seeking ejectment, a money judgment for unpaid rent, declaratory relief, and attorney's fees — while also seeking dismissal of counterclaims the tenant had asserted.

The Court's Decision: Summary Judgment Granted

On March 15, 2023, after oral argument, the Hon. Rupert V. Barry, A.J.S.C. of Kings County Supreme Court issued a comprehensive Decision & Order granting summary judgment in our client's favor on multiple grounds.

Ejectment granted. The court found that our client had established all elements of a cause of action for ejectment under New York law: ownership of the property, a present right to possession, and unlawful holdover by the tenant following lease termination. The Kings County Sheriff and/or New York City Marshal were directed to remove the tenant from the premises.

Attorney's fees awarded. The court granted summary judgment on the attorney's fees claim, finding that the lease's fee-shifting provision — which entitled the prevailing landlord to recover reasonable legal fees in any action arising from the tenant's breach — was enforceable. The precise amount was severed for determination at a separate inquest.

Tenant's counterclaim dismissed with prejudice. The tenant had asserted a counterclaim for breach of the warranty of habitability, alleging the landlord failed to make common area improvements and maintain the elevator. The court dismissed this claim entirely, with prejudice.

Tenant's cross-motion for summary judgment denied. The tenant's own motion to dismiss the landlord's complaint was denied in full.

Key Legal Issues: What This Case Teaches Commercial Landlords and Tenants

This decision addressed several defenses that commercial tenants frequently attempt to raise. Each was rejected. Understanding why matters for any landlord drafting or enforcing a commercial lease in New York.

Issue 1: The Warranty of Habitability Does Not Apply to Commercial Leases

The tenant alleged that the landlord breached the warranty of habitability — a claim typically associated with residential tenants who are protected under Real Property Law § 235-b when conditions in their apartments become dangerous or uninhabitable.

The court dismissed this counterclaim with prejudice because the warranty of habitability under New York law applies only to residential premises. It simply does not exist as a legal protection for commercial tenants. A commercial tenant who is unhappy with the condition of a space has other potential remedies — but a warranty of habitability claim is not one of them.

Takeaway for landlords: When a commercial tenant raises habitability as a defense or counterclaim, it can and should be challenged directly. This is a well-established legal principle, and courts will dismiss it.

Issue 2: Oral Modifications to a Commercial Lease Are Generally Unenforceable

The tenant argued that the amount of rent owed had been orally modified by the prior landlord — in other words, that someone had verbally agreed to reduce the rent below what the written lease required.

The court rejected this argument for two independent reasons. First, the lease itself contained a merger clause providing that the written agreement constituted the entire understanding between the parties and that any modification had to be in writing and signed by the party against whom enforcement was sought. Second, New York's General Obligations Law § 15-301(1) independently bars oral modification of written contracts that contain a no-oral-modification clause.

The court also noted that even if a partial payment had been accepted, the lease expressly provided that acceptance of a lesser amount would not be deemed an accord and satisfaction or a waiver of the landlord's right to recover the full balance.

Takeaway for landlords: A well-drafted commercial lease should always include a no-oral-modification clause and a merger clause. These provisions are not boilerplate — they are critical protections that courts will enforce when a tenant claims a verbal side deal was made.

Issue 3: Lease Termination Notices Must Be Sent in the Method Required by the Lease

The tenant challenged the validity of certain communications, arguing that demands sent by first-class mail were insufficient. The court pointed to the notice provision in the lease, which required that all notices be sent by registered or certified mail, express mail, or overnight courier with receipt confirmation.

Takeaway for landlords: Always follow the notice procedures specified in your lease exactly. Sending a notice by the wrong method — even if the tenant actually receives it — can create challenges in litigation. Before sending any cure notice, termination notice, or demand, review the lease's notice provision carefully.

Issue 4: COVID-19 Executive Orders Did Not Bar Commercial Lease Breach Claims

The tenant argued that the action was barred by executive orders issued during the COVID-19 pandemic. The court rejected this, finding that the relevant executive orders narrowly applied to non-payment proceedings — not to commercial breach of contract actions or holdover proceedings. The lawsuit was not barred.

Takeaway for landlords: Pandemic-era protections for tenants were more limited in scope than many assumed. Courts consistently held that breach of commercial lease claims and ejectment actions fell outside the stay provisions that applied to non-payment proceedings.

How to Protect Yourself Before a Dispute Arises

The best outcome in a commercial lease dispute is one that never needs to go to litigation. The lease itself is the foundation. Based on the issues litigated in this case, every commercial landlord in New York should confirm that their leases include:

• A clear default and termination provision that allows re-entry without notice upon non-payment

• A no-oral-modification clause and merger clause

• A notice provision specifying the required method of delivery (certified mail, overnight courier, etc.)

• An attorney's fees provision entitling the landlord to recover legal costs if the tenant breaches

• A "no accord and satisfaction" clause preventing partial payments from being used to reduce the full amount owed

If your existing commercial leases lack any of these provisions, now is the time to address them — before a dispute arises.

How Hecht Law Group Can Help

Hecht Law Group represents commercial landlords and property owners in lease enforcement, ejectment proceedings, and commercial real estate litigation throughout New York. Whether you are dealing with a holdover tenant, preparing for litigation, or want to ensure your leases provide adequate protection, we can help. Get in touch for a free consultation.

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Mitchell Hecht is a commercial real estate and property attorney licensed in New York, representing landlords, property owners, and investors in Nassau County and the NYC metro area.

Attorney Advertising. This post is for informational purposes only and does not constitute legal advice. Prior results do not guarantee a similar outcome.