From Casetext: Smarter Legal Research

1100 Av., the Americas v. Bryant Imports

Appellate Division of the Supreme Court of New York, First Department
Dec 12, 1996
234 A.D.2d 101 (N.Y. App. Div. 1996)

Opinion

December 12, 1996.

Order of the Appellate Term of the Supreme Court, First Department, entered June 9, 1994, which affirmed an order and judgment of the Civil Court, New York County (Louise Gruner-Gans, J.), both entered on or about May 29, 1992, inter alia, disallowing petitioner-landlord's claim for additional rent under the real estate tax escalation clause of the subject lease, unanimously affirmed, without costs.

Before: Sullivan, J.P., Milonas, Rubin, Williams and Andrias, JJ.


Although the tax escalation clause does not explicitly state whether actual payment of the property tax by the landlord is a prerequisite to the imposition of additional rent on the tenant, we agree with Appellate Term that to require the tenant to pay additional rent where the obligation to pay the tax has been shifted from the landlord to a third party would result in the landlord "reap[ing] a windfall not envisioned by the parties' agreement" ( S.B.S. Assocs. v Weissman-Heller, Inc., 190 AD2d 529, 530; see, Wendel Found, v Moredall Realty, 282 NY 239).

Petitioner-landlord's claim that it is respondent-tenant which is realizing a windfall inasmuch as the landlord has accepted a reduced net lease rent in consideration of HBO paying the tax directly is unsupported by any evidence in the record.

[ See, 161 Misc 2d 582.]


Summaries of

1100 Av., the Americas v. Bryant Imports

Appellate Division of the Supreme Court of New York, First Department
Dec 12, 1996
234 A.D.2d 101 (N.Y. App. Div. 1996)
Case details for

1100 Av., the Americas v. Bryant Imports

Case Details

Full title:1100 AVENUE OF THE AMERICAS ASSOCIATES, Appellant, v. BRYANT IMPORTS…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Dec 12, 1996

Citations

234 A.D.2d 101 (N.Y. App. Div. 1996)
650 N.Y.S.2d 725

Citing Cases

Wellington Tower Associates v. New York First Avenue CVS, Inc.

The subject clause, entitled "Tenant's Tax Payment," does not evince an unequivocal intent that tenant's…

Ran First Associates v. 363 East 76th Street Corp.

Enforcing the lease escalation clause as written is consistent with well-settled law that such clauses are…