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199 Archer Ave. LLC v. NYC Health & Hospitals Corp.

(NYC Civil Court, NY County, 10/26/2010)

We represented: 199 Archer Avenue

Judge Manuel J. Mendez, J.C.C


Plaintiff brings this action to recover $29,999.97 plus prejudgment interest from the defendant, for partial rent arrears for the month of February 2006 in the amount of $9,987.07 and the entire month of March 2006 in the amount of $20,012.90. Defendant denies owing this amount alleging that it was entitled to a pro-rata reduction in the rent for its inability to use a portion of the lease space for its intended purpose. This matter was tried by the court on March 2, 2010. Following completion of trial the parties asked to submit post trial legal memoranda, which the court requested be submitted no later than March 16,2010. Following submission of the legal memoranda, the court now renders its decision and judgment.

On November 20, 1992 the parties entered into a lease for" approximately 42,335 square feet of land and the entire building thereon, containing approximately 6,534 square feet( the "Building"), all known as 166-10 Archer Avenue, Jamaica, Queens (Block 10156, Lot 40) (the "Premises"), .to be used for a community health clinic and vehicular parking ... "[See Plaintiffs 2 in evidence, lease]. The lease contained a description of the premises (exhibit A) and a Survey (exhibit B), and it was to expire at the end of twenty (20) years from the commencement date, as defined in the lease.[ see plaintiffs 2 in evidence].

In August of 2004 moisture buildup in the rear of the building, adjacent to property owned by the long island railroad, began to creep into the interior of the building rendering some of the space unusable for its intended purpose. The buildup of moisture was caused by the accumulation of garbage on a strip of land between the rear of the building and a retaining wall dividing the leased premises and the Long Island Railroad property [Testimony Kreppel]. On November 10, 2005 Ms. Anita O'Brien on behalf of defendant, sent a letter to the landlord in accordance with the notice provisions in the lease, requesting that "landlord make repairs to the exterior of the southeastern wall of the building due to accumulation of debris upon said wall" [ See Defendant's 'B' in evidence]. On December 1, 2005 plaintiff, through its attorney, Douglas Gladstone, responded to Ms. O'Brien's letter acknowledging receipt of same, and informing her that landlord had "commenced performance of work to remedy the conditions set forth in your letter and has retained the services of Kay Waterproofing to continue to work on the problem." [See 'B' in evidence]. Mr. Gladstone's letter further directed that Ms. O'Brien contact Mr. Leonard Kreppel, the landlord's agent with any questions.

On December 22, 2005 Mr. Jeremy Berman, Associate General Counsel to the defendant, sent a letter to landlord's agent advising that" contrary to the statement made in Mr. Gladstone's letter, the work demanded to be undertaken by Ms. O'Brien has not been commenced. I enclose prints of six photographs taken December 20, the first three of which were taken of the wall in question and the next three of which show the kind of interior damage that is resulting from the deteriorated condition of the exterior wall in question."[See Defendant's "C, Dl-3,El-5" in evidence]. In the same letter Mr. Berman informed landlord's agent that since more than thirty days have elapsed from Ms. O'Brien's notice and no work has been initiated, tenant will select a contractor to perform the work and take a credit against rent due to landlord for the cost incurred. Furthermore in accordance with Article 10 (D) of the lease tenant claims 25% of the building has been made unusable since August 2004 due to the condition and tenant claims a credit of 25% of the rent payable since August 2004.

Article 10 of the lease dealing with repairs, is the article applicable to this .case. It states

(A) " Landlord shall at its sole cost and expense, make: (I) all repairs to the exterior of the building excluding doors, window glass and graffiti' (ii) all structural repairs to the building; (iii)repairs to any subsurface conditions affecting the premises; and (iv)all repairs needed because of landlord's negligence or because of defective materials or workmanship or latent defects in the construction and/or improvement of the premises or of the building (including doors and window glass). The landlord shall not be obligated to make repairs arising by reason of the acts or negligence of the tenant, its agents, contractors, employees, subtenants, occupants or invitees"

(B) "in the event landlord fails to fulfill its obligation under this article, tenant shall give written notice to landlord specifying the repairs required by tenant and landlord shall commence performance of such repairs within a reasonable time after receiving such notice and shall with reasonable diligence and continuity proceed to complete said repairs. In the event landlord fails to commence within thirty days after receipt of written notice by tenant or complete the repairs as required herein, tenant, as its sole remedy may, as agent of landlord, perform the same and deduct the cost thereof from any rent due or that may become due and payable under this lease."

[C] "Anything to the contrary notwithstanding, in the event the repairs required to be performed by landlord involve the correction of a hazardous condition or to end an emergency which renders all or substantially all of the premises unsuitable for the use set forth herein ( "the emergency repairs") tenant shall give landlord, its agent, superintendent or the person designated to receive such notice immediate notice in writing of the requirements to perform such emergency repairs, to be served personally or by express mail or overnight carrier, and landlord shall within three(3) business days commence and diligently proceed with continuity to complete the Emergency Repairs. If landlord shall have sent an agent or representative to inspect the condition necessitating the Emergency Repairs within said three (3) business day period, it shall be conclusively deemed that landlord shall have commenced to perform such work within said period, as long as landlord then promptly begins the repairs indicated by such inspection. In the event landlord fails to commence within said three(3) business days and diligently proceed with continuity to complete the Emergency Repairs after receipt of such notice as required herein, and by reason thereof, tenant shall be unable to occupy the premises for its intended use, tenant, as its sole remedy, and at tenant's election by notice to landlord either (i)may contract for substitute temporary space necessary to maintain the continuity of tenant's operations for the period ("Temporary Period")ending on the completion of the repairs and deduct the cost thereof from any rent due or which may become due and payable under this lease, or (ii) if after using reasonable diligence, tenant is unable to obtain such substitute temporary space then the rent shall abate for the "temporary period" and tenant, after notice to landlord to that effect, may undertake the performance of the Emergency Repairs and the actual cost thereof shall be deducted from the next accruing installment of rent (or if there are not enough installments remaining, any excess shall be paid by landlord to tenant on the expiration of the term of this lease)."

(D) "In the event tenant is unable to use for a period of sixty (60) consecutive days, for its normal operations, any part or all of the premises because of landlords failure to perform repairs or Emergency Repairs required to be made by landlord as set forth in paragraphs 'B' or 'C' above, the rent shall be reduced proportionate to the diminution in space resulting from such failure based upon the pro-rata share of space rendered unusable to the total space originally demised herein."

(E) "In the event that an inspection of the premises reveal presence of friable asbestos or other hazardous or toxic materials or substances (collectively "toxic waste") not caused by tenant or anyone claiming under tenant, landlord agrees after receipt of written notice from tenant, to remove or remediate toxic waste at its own cost and expense in accordance with legal requirement. Tenant agrees that it will not, in violation of legal requirements, bring or permit any toxic waste to be brought into or to remain on the premises and tenant agrees promptly on demand of landlord to remove such toxic waste, at its own cost and expense, so that the premises shall at all times be free of the same."

(F) "Tenant shall make all repairs to the premises including repairs to the heating, ventilating and air-conditioning/cooling systems and equipment which are not the obligation of landlord, so that the premises, including the parking lot, shall be kept and maintained in good order and condition. In addition, tenant agrees to keep the parking lot reasonably clean and free of ice, snow and rubbish at all times.

Ms. O'Brien acknowledge that landlord hired a water proofing contractor that repaired the rear exterior wall of the building and that the interior areas affected by the moisture condition. She calculated based on her personal observations, estimates, and the floor plan ,that approximately 1500 square feet of the roughly 6500 square feet rented had become unsuitable for its intended purpose.

Mr. Isaac Katz, from Kay Waterproofing, stated that he was hired by the landlord to repair the damage to the exterior wall. He began the work at end of December 2005 and completed it in early January 2006. Mr. Kreppel stated that Kay Waterproofing was hired to repair the damage to the wall. He further stated that he inspected the damage in the interior of the premises. The damage consisted mostly of paint damage to five rooms in the rear, the lab 60 Sq ft., Radiology 120 Sq ft., exam 112 sq ft., exam 110sq ft., exam 100sq ft., dentist 100 sq ft., which totaled approximately 600 sq ft. He obtained this information from the square footage of the rooms in the building's floor plan. [see Plaintiffs 9 in evidence].

Ordinarily it is the court's responsibility to interpret written instruments (New Hampshire Ins. Co., v. Wellesley Capital Partners, Inc., 200 A.D. 2d 143,612 N.Y. S. 2d 407). In the interpretation of the written instrument the court has analyzed the applicable provisions of the lease in their entirety, searching for the probable intent of the parties. In searching for the probable intent of the parties the fair and reasonable meaning of the words control ( Sutton v. East River Savings Bank, 55 N.Y. 2d 550, 450 N.Y.S. 2d 460,435 N.E. 2d 1075). When the terms of the contract are clear and unambiguous the intent of the parties must be found within the four comers of the contract ( Goldstein v. Accuscan, Inc., 2 N.Y. 3d 811; Signature Realty, Inc., v. Tallman, 2 N.Y. 3d 810,781 N.Y.S. 2d 259,814 N.E. 2d 429; Greenfield v. Phi lies Records, Inc., 98 N.Y.2d 562, 750 N.Y.S. 2d 565,780 N.E. 2d 166; Slamow v. Del Col, 174 A.D. 2d 725,571 N.Y.S. 2d 335, affd, 79 N.Y. 2d 1016, 584 N.Y.S. 2d 424, 594 N.E.2d 918; Wood v. Maggie's Tavern, Inc., 257 A.D. 2d 733, 683 N.Y.S. 2d 353).The same rules of construction applicable to contracts generally apply in the interpretation of leases (George Backer Management Corp., v. Acme Quilting Co., Inc., 46 N.Y. 2d 211, 413 N.Y.S. 2d 135,385 N.E. 2d 1062; State v. Robin Operating Corp., 3 A.D. 3d 757, 773 N.Y.S. 2d 131).

In accordance with the terms of the lease, tenant leased land and the entire building thereon. In accordance with the description of the premises and the survey annexed to the lease, the land begins" at the comer formed by the intersection of the southerly side of Archer Avenue ... ; Running thence southerly along the westerly side of 168th street, 161.60 feet to the northerly line of land of the Long Island Railroad; Thence Westerly on a line .... a long the northerly line of the Long Island Railroad to the easterly side of Merrick Boulevard; Running Thence northerly along the easterly side of Merrick Boulevard .... to the southerly side of Archer Avenue; Thence easterly along the southerly side of Archer Avenue ..... at the point or place of beginning." The survey clearly shows that the dividing line between the leased land and the Long Island Railroad is the retaining wall and fence that divides both properties [See plaintiffs 2 in evidence], thus that part of the premises between the rear of the building and the retaining wall is part of the leased premises.

Mr. Kreppel stated, and the evidence submitted corroborates his testimony, that it is tenant's responsibility to clean the debris between the railroad property and the rest of the premises [See defendants' El-5]. Any debris that accumulates in that portion of the leased premises between the rear of the building and the retaining wall must be removed by tenant so that in accordance with paragraph 10(F) of the lease "the premises are kept and maintained in good order and condition".

In accordance to paragraph 10(A) landlord is responsible for all exterior repairs, unless the damage arises by reason of the acts or negligence of the tenant. On the record before this court it has been proven that the accumulation of debris was due to the acts of the tenant; however, it has not been proven that the debris was the cause of the cracks in the wall and the moisture seeping into the rear wall of the building and the interior of the premises.(Wragge v. Lizza Asphalt Constr. Co., 17 N.Y. 2d 313, 270 N.Y.S. 2d 616, 217 N.E.2d 666; Taylor v. Yonkers, 105 N.Y. 202, 11 N.E. 642; Rugg v. State, 284 App Div 179, 131 N.Y.S. 2d 2). Although Ms. O'Brien stated that she was aware of the garbage accumulating in the rear portion of the building since it was built, and that no one in tenant's employ ever cleaned this portion of the premises, The record does not' contain information that but for the accumulation of the debris there would be no cracks in the rear exterior wall, no moisture buildup or moisture seeping into the wall of the rear of the building. Therefore, since the repair needed to be performed is to an exterior part of the premises, in accordance with paragraph 10(A) it is the responsibility of landlord.

Tenant notified landlord by letter of the condition in the exterior wall in the rear of the building as noted in Mr. Gladstones' letter admitting receipt of notice (See Carle Place Chiropractic v. New York Central Mutual Fire Insurance Co.,19 Misc. 3d 1139(A), 866 NYS 2d 90; there are three methods of demonstrating proof of mailing (1) an affidavit from an individual with personal knowledge of the actual mailing;(2) an acknowledgment by the adverse party that it received the document;(3) proof of a standard office procedure which insures that documents are properly addressed and mailed). In accordance with 10(B) landlord needed to commence repairs within thirty(30) days from receipt of written notice.

Landlord sent its agent Leonard Kreppel to inspect the condition necessitating repair within thirty days of receipt of notice. It also engaged the services of Kay Waterproofing to repair the condition [See Testimony Kreppel and Katz]. According to Mr. Isaac Katz the repairs were commenced at the end of December 2005 and were completed by early January 2006. In accordance with 10(D) tenant is entitled to a pro-rata diminution of rent if "the tenant is unable to use for a period of sixty (60) consecutive days, for its normal operations, any part or all of the premises because of landlord's failure to perform repairs required". It has been established that notice of the defective condition was received by landlord after November 10, 2005. The repairs were not completed until early January of2006, which is within the sixty (60) day period to complete the repairs. Landlord performed the required repairs within the time contemplated in the lease I 10D), therefore tenant is not entitled to a pro-rata diminution of rent.

Landlord established that it is owed part of the rent for the month of February 2006 in the amount of $9,987.07 and the entire month of March 2006 in the amount of $20,012.90 [See plaintiffs 5 in evidence].

Accordingly, for the foregoing stated reasons it is the decision and judgment of this court in favor of plaintiff and against the defendant in the amount of $29,999.97 with interest from March 1, 2006 plus costs and disbursements.

This constitutes the decision and judgment of this court.
Dated: March 26, 2010