Opinion
July 10, 1967
In an action to declare the rights of the parties under a supermarket lease and for a permanent injunction to enjoin defendant from terminating the lease and from commencing summary proceedings to remove plaintiff from certain demised premises, plaintiff appeals from (a) an order of the Supreme Court, Queens County, entered May 3, 1967, by which the court declined to take jurisdiction of the action, dismissed the complaint, and denied the motion for a temporary injunction, and (b) the judgment dismissing the complaint, entered May 10, 1967. Order and judgment reversed on the law, with costs, and judgment directed to be entered in accordance herewith. Pending appeal, the parties filed a stipulation authorizing this court to determine the issue herein as a matter of law. Pursuant to the aforesaid stipulation, this court holds that, because of the use to which it put the premises, it was the tenant's obligation under the lease to comply with the Fire Department order requiring the installation of a water sprinkler system in the cellar of the subject supermarket (1 Rasch, Landlord and Tenant and Summary Proceedings, § 596; 4370 Park Ave. Corp. v. Hunter Paper Co., 10 Misc.2d 1098, affd. 6 A.D.2d 684, mot. for lv. to app. den. 6 A.D.2d 866; Vogel v. Medlin, 201 N.Y.S.2d 393, revd. 226 N.Y.S.2d 609, affd. 18 A.D.2d 1052). The instant action sought a declaratory judgment, a form of relief which is essentially equitable in nature (26 C.J.S. Declaratory Judgments, § 105). "Once a court of equity has jurisdiction of a cause it has the power to dispose of all the matters at issue and grant complete relief" ( Ferguson v. Village of Hamburg, 272 N.Y. 234, 239). At bar, the submission of the parties encompassed not only the question of whose obligation it is to install the system but also the collateral and perhaps more important question as to whether the lease could be terminated by the landlord on account of the tenant's alleged default in installing the sprinkler system. The landlord has invoked the applicable lease provisions with regard to terminating it when the tenant has been in default under its terms and it would be possible to, therefore, declare the lease to be at an end. However, in our opinion the tenant was acting in good faith when it brought the declaratory judgment action, and it would be a harsh and inequitable result for this court to declare the lease terminated and thereby bring about the tenant's eviction from the premises. Accordingly, the lease is to be preserved upon performance by the tenant within 20 days of the duty to install a satisfactory sprinkler system, or to pay therefor if it has already been installed by the landlord, and the landlord is permanently enjoined from instituting summary proceedings to evict the tenant. Rabin, Acting P.J., Hopkins and Nolan, JJ., concur; Benjamin and Munder, JJ., dissent and vote to affirm the order and judgment, with the following memorandum: We agree with the majority's holding that the lease required the tenant to install the water sprinkler system. But we do not agree that this court can and should reverse Special Term's determination declining to take jurisdiction of this action and denying the motion for a temporary injunction. The subject lease gave the landlord the right to terminate it, on 10 days' notice, if the tenant defaulted in the performance of any covenant. The default in this instance was the failure to install a sprinkler system, despite a notice from the Fire Department requiring its installation, and repeated requests from the landlord to install it. Clearly, such default was a serious one, involving, as it did, a major repair affecting the safety of the building. And the landlord consequently had ample reason to terminate the lease under the clause giving it that right. The landlord decided to exercise that right and served a 10-day notice of default on the tenant; the tenant did not cure the default within the prescribed time, and the landlord then declared the lease at an end as of March 15, 1967. That action by the landlord effectively terminated the lease, and the court now lacks power to revive it. This is so because the landlord's acts were strictly in accordance with the lease provisions, and no court can interfere with or bar those proper acts unless it rewrites the lease for the parties; and that, of course, the court cannot do, since there has been no claim of fraud, mutual mistake or other acceptable basis for reformation. Accordingly, we vote to affirm the judgment and order.