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CONEY ISLAND EXHAUST, INC., Respondent, v. ADRIANA REALTY CORP., Appellant.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the defendant's motion for partial summary judgment on its counterclaim is granted.

The instant appeal arises out of a conflict between the defendant landlord and the plaintiff tenant over the plaintiffs nonpayment of rent for the demised premises. A tenant has an independent obligation to pay rent which continues as long as the tenant remains in possession ( Earbert Rest, v Little Luxuries, 99 AD2d 734). On its motion for partial summary judgment, the defendant landlord submitted evidence which established a prima facie case that the tenant had failed to pay past due rent and/or use and occupancy charges and real estate taxes. The plaintiff tenant's opposition papers consisted of an affirmation of counsel who was without personal knowledge of the facts and failed to raise a triable issue of fact. The tenant's claim of actual partial eviction is not preserved for appellate review, as it was not raised in opposition to the defendant landlord's motion ( see, Whitfield v Town of Oyster Bay, 225 AD2d 763; Lesman v Weinrib, 221 AD2d 601). Thus, the landlord was entitled to partial summary judgment on its counterclaim for past due rent and/or use and occupancy charges and real estate taxes.

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CONEY ISLAND EXHAUST v. ADRIANA REALTY CORP
(Feb 18, 1997)