Opinion
January 21, 1971
Order and judgment (one paper), Supreme Court, New York County, entered on July 21, 1970, unanimously reversed, on the law; appellant shall recover of respondent $50 costs and disbursements of this appeal; and declaratory judgment directed restraining the defendant from utilizing the unused floor area ratio applicable to plaintiff's real property located at 4 West 58th Street in the Borough of Manhattan for the benefit of defendant's property located at 10-40 West 58th Street. Absent any provision in the lease authorizing it, defendant may not for its own purposes sever from and appropriate for the benefit of defendant's real property any part of plaintiff's property or the bundle of rights incident thereto. Defendant relies on section 4.03 of its lease which enables it to make additions, alterations and changes to the premises as will suit its convenience and requirements of its business or the business of any tenant of the lessee, provided the character of the plaintiff's building is not changed, the prior approval of the plaintiff being necessary to any such alteration or change involving an expenditure in excess of $25,000. Defendant's attempt to utilize the floor area ratio of plaintiff's building for defendant's building adjacent thereto does not constitute an addition to or alteration of the plaintiff's premises for the benefit of the lessee thereof or of the lessee's tenants. It is rather the permanent disposition or elimination of the right to enlarge plaintiff's building. It is incontrovertible that the value of plaintiff's property will be less if its floor area ratio is severed and utilized for the benefit of the defendant's property. "The real inquiry in all cases is, whether there is damage done which injures the reversion. * * * This injury may be immediate, though the enjoyment of the reversion is postponed. The value of the property may be so much diminished that it will not bring the price in market that it would previously have commanded. This is a sufficient injury. * * * Good faith on the part of the tenant is no defense". ( Agate v. Lowenbein, 57 N.Y. 604, 614.)
Concur — Capozzoli, J.P., McGivern, Nunez and McNally, JJ.