What did the court decide?

The court allowed the landlord a partial win: they can recover use-and-occupancy for October 2020 through March 2021, but other rent claims were left for trial because factual disputes remain.

Who is affected by this decision?

Both the tenants (plaintiffs) and the landlord (defendants) are affected: tenants may owe money for the period after elevator service was restored; the landlord still must litigate other claims.

Can this decision be appealed?

Yes; as an appellate decision by the First Department, a party could seek leave to appeal to the New York Court of Appeals, subject to timing and leave requirements.

Clarke v. Fifth Ave. Dev. Co., LLC

Docket Index No. 158986/20 |Appeal No. 6439|Case No. 2025-06786|

Court of record · Indexed in NoticeRegistry archive · AI-enriched for research

CivilAffirmed in Part, Reversed in Part

Filed: Apr 23, 2026 · 1 week ago
Jurisdiction: New York
Court: Appellate Division of the Supreme Court of the State of New York
Type: Opinion
Case type: Civil
Disposition: Affirmed in Part, Reversed in Part
Citation: 2026 NY Slip Op 02446
Docket numbers: Index No158986/20Appeal No6439Case No2025-06786

Appeal from a Supreme Court, New York County order denying defendants' motion for summary judgment on their counterclaim for unpaid rent

Summary

The Appellate Division, First Department modified a lower-court order denying summary judgment to the landlord-defendants on their counterclaim for unpaid rent. The court held defendants were entitled to partial summary judgment that plaintiffs owe use-and-occupancy damages for the period October 2020 through March 2021, when plaintiffs returned to and lived in the apartment after elevator service was restored. The court otherwise affirmed the denial of summary judgment because disputed facts remain about defendants' alleged fraudulent inducement, whether plaintiffs were partially constructively evicted or unreasonably rejected alternative housing, and whether plaintiffs ratified the lease.

Issues Decided

Whether defendants were entitled to summary judgment on their counterclaim for unpaid rent based on the lease and plaintiffs' possession and nonpayment
Whether there are triable issues of fact that defendants fraudulently induced plaintiffs to sign the lease by promising uninterrupted elevator service
Whether plaintiffs were partially constructively evicted or unreasonably rejected an offer of alternative accommodation during elevator service disruption
Whether plaintiffs ratified the lease by returning to the apartment after elevator service was restored

Court's Reasoning

The court found defendants made a prima facie showing of entitlement to rent by producing the lease, showing they delivered possession, and showing plaintiffs failed to pay after taking possession. But the existence of disputed facts about defendants' intent to induce the lease, the impact of elevator disruptions (constructive eviction or unreasonable rejection of alternatives), and whether plaintiffs ratified the lease when they returned precluded full summary judgment. Nonetheless, because plaintiffs lived in the apartment after elevator service was restored, defendants are entitled to recovery for use and occupancy for October 2020 through March 2021.

Authorities Cited

Clarke v Fifth Ave. Dev. Co.211 AD3d 460 (1st Dept 2022)
Lukowsky v Shalit110 AD2d 563 (1st Dept 1985)

Parties

Plaintiff: Irene Clarke et al.
Defendant: Fifth Ave. Development Co., LLC et al.
Attorney: The Law Office of Michael R. Koenig (Robert Dashow of counsel) for appellants
Attorney: Gibson, Dunn & Crutcher LLP (Jeremy A. Bunting of counsel) for respondents
Judge: Leslie A. Stroth
Judge: Scarpulla, J.P.
Judge: Friedman
Judge: Gesmer
Judge: Shulman
Judge: Chan

Key Dates

Decision date: 2026-04-23
Lower court order entered: 2025-10-03

What You Should Do Next

1
Prepare for trial on disputed issues
Both parties should gather evidence and witness testimony about the landlord's representations about elevator service, any offers of alternative housing, and the tenants' conduct when they returned to the apartment.
2
Calculate and collect use-and-occupancy damages
Defendants should compute the amount owed for October 2020–March 2021 and consider enforcing that partial judgment or presenting the calculation at trial.
3
Consult counsel about further appeal
A party seeking broader relief may consult appellate counsel about applying for leave to appeal to the Court of Appeals and about timing for any such application.

Frequently Asked Questions

What did the court decide?: The court allowed the landlord a partial win: they can recover use-and-occupancy for October 2020 through March 2021, but other rent claims were left for trial because factual disputes remain.
Who is affected by this decision?: Both the tenants (plaintiffs) and the landlord (defendants) are affected: tenants may owe money for the period after elevator service was restored; the landlord still must litigate other claims.
What issues still need to be decided at trial?: Whether the landlord fraudulently induced the tenants to sign the lease, whether tenants were partially constructively evicted or unreasonably rejected alternative housing, and whether tenants ratified the lease by moving back in.
Can this decision be appealed?: Yes; as an appellate decision by the First Department, a party could seek leave to appeal to the New York Court of Appeals, subject to timing and leave requirements.

The above suggestions and answers are AI-generated for informational purposes only. They may contain errors. NoticeRegistry assumes no responsibility for their accuracy. Consult a qualified attorney before relying on them.

Full Filing Text

Clarke v Fifth Ave. Dev. Co., LLC - 2026 NY Slip Op 02446

Clarke v Fifth Ave. Dev. Co., LLC

2026 NY Slip Op 02446

April 23, 2026

Appellate Division, First Department

Irene Clarke et al., Plaintiffs-Respondents,

Fifth Ave. Development Co., LLC et al., Defendants-Appellants.

Decided and Entered: April 23, 2026

Index No. 158986/20 |Appeal No. 6439|Case No. 2025-06786|

Before: Scarpulla, J.P., Friedman, Gesmer, Shulman, Chan, JJ.

The Law Office of Michael R. Koenig, New Rochelle (Robert Dashow of counsel), for appellants.

Gibson, Dunn & Crutcher LLP, New York (Jeremy A. Bunting of counsel), for respondents.

Order, Supreme Court, New York County (Leslie A. Stroth, J.), entered October 3, 2025, which denied defendants' motion for summary judgment on their counterclaim for unpaid rent, unanimously modified, on the law, to grant defendants' motion to the extent of granting theml summary judgment as to plaintiffs' liability to pay them for use and occupancy of the subject apartment for the period from October 2020 to March 2021, during which time plaintiffs lived in the apartment after the restoration of elevator service, and otherwise affirmed, without costs.

Defendants established prima facie entitlement to summary judgment on their counterclaim for unpaid rent by submitting proof of the lease, tendering possession of the apartment to plaintiffs, and plaintiffs' nonpayment of rent after taking possession. Nevertheless there are triable issues of fact as to whether defendants fraudulently intended to induce plaintiffs to sign the lease (
see

Clarke v Fifth Ave. Dev. Co.
, 211 AD3d 460, 461 [1st Dept 2022]). On a prior appeal in this case we held that there are issues of fact with respect to, among other things, defendants' alleged intent to defraud plaintiffs into believing that the elevator would be available without disruption during the entire term of their tenancy (
see

id.
at 461;
see also Lukowsky v Shalit
, 110 AD2d 563, 568 [1st Dept 1985]).

Further, we also decline to grant summary judgment on defendants' counterclaim for unpaid rent because there are issues of fact concerning whether plaintiffs were partially constructively evicted from the apartment or whether plaintiffs unreasonably rejected an offer of alternative accommodation during the elevator service disruption to the apartment (
see

Clarke
, 211 AD3d at 461). Finally, there remain issues of fact as to whether plaintiffs ratified the lease when they moved back into the apartment in October 2020, once the elevator service had been restored, because plaintiffs commenced this action shortly thereafter. However, regardless of ratification, defendants are entitled to partial summary judgment as to plaintiffs' liability to pay them for use and occupancy of the apartment for the period from October 2020 to
March 2021 during which plaintiffs lived in the apartment after the restoration of elevator service.

We have considered defendants' remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: April 23, 2026