Nat's Pizzeria, Inc. v. 165 Lexington Avenue Associates

Order, Supreme Court, New York County (Edward Lehner, J.), entered November 20, 2001, which, inter alia, granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant landlord was properly granted summary judgment dismissing the complaint alleging causes for breach of contract and fraud. Plaintiff tenant’s breach of contract cause was demonstrably without merit as the evidence showed that plaintiff accepted the leased premises in “as is” condition after having been afforded several opportunities for their inspection, and that it was plaintiff, rather than defendant, that had assumed responsibility pursuant to the lease for making any structural alterations in the premises necessary to render them suitable for use as a restaurant.

In light of plaintiff’s acceptance of the premises in “as is” condition after full opportunity for inspection, and because converting the premises to a restaurant required substantial structural alteration, the extent of which was, according to plaintiff’s own consulting engineer, not dependent upon the condition of the premises’ second floor wood beam support structure, plaintiff has no sustainable claim that any representation by defendant as to the condition of that wooden support *390structure was material to its decision to enter into the lease and, accordingly, plaintiffs claim for fraud must fail (cf. Jo Ann Homes at Bellmore v Dworetz, 25 NY2d 112 [1969]). Concur — Tom, J.P., Mazzarelli, Ellerin, Lerner and Marlow, JJ.