appropriate [*4]remedy for failure to have insurance
under the lease. (NYSCEF No. 76 at 13.) But the cases relied on by defendant for this
proposition involve situations in which the plaintiff procured its own insurance (see
Yofi Book Publ'g, Inc. v Wil-Brook Realty Corp., 287 AD2d 712, 713 (2d Dept
2001]), or in which the lease limits landlord's remedy to damages (see Olin v.
Warner, 11 Misc 2d 910, 910-911 [Jefferson County Ct, 1958]). Moreover, the
Appellate Division, Fourth Department, has held that when a tenant breaches the terms of
the lease by failing to insure the premises, the breach is material and warrants termination
of the lease when the lease provides for that remedy. (See Brainerd Mfg. Co. v
Dewey Garden Lanes, Inc., 78 AD2d 365, 366 [4th Dept 1981].)
Defendant points to a proprietary lease provision that limits the scope of plaintiff's
legal obligations to ensure that a co-op resident maintains the necessary homeowner's
insurance (and limits plaintiff's legal liability if the resident does not do so). (See
NYSCEF No. 76 at 13, citing NYSCEF No. 21 at 25.) This court is not persuaded,
though, that the presence of this protection for plaintiff implicitly ousts its right to treat
the failure to maintain insurance as a material breach warranting termination of the
lease.
F. Whether Defendant has Established a Material Dispute of Fact about Whether
His Breach Should be Excused
Defendant also claims that plaintiff prevented him from accessing the premises to
make repairs so he could obtain insurance and therefore that he was excused from
procuring insurance. Plaintiff counters that regardless of defendant's excuses, he was in
default under the lease. (NYSCEF No. 83 at 8.) Plaintiff also contends that (i) there is no