Summary
In Frequency Elec., Inc. v. We're Assocs. Co., 120 A.D.2d 489, 501 N.Y.S.2d 693, 694 (2d Dep't. 1986), the court found that defendant lessee did not breach a lease provision similar to the present provision when defendant installed a ventilation system, because the system was "readily removable" would not injure plaintiff's reversion. If a ventilation system within leased premises is not deemed an alteration, then a vapor extraction system under the leased premises, which has no impact whatever on the nature and character of the premises themselves, can hardly be deemed an alteration.
Summary of this case from Christie-Spencer Corp. v. Hausman Realty Co., Inc.Opinion
May 5, 1986
Appeal from the Supreme Court, Nassau County (Brucia, J.).
Appeal from so much of the judgment as granted the plaintiff relief on its ninth and tenth causes of action dismissed. That portion of the judgment was superseded by the order.
Judgment otherwise modified, on the law, by deleting the ninth decretal paragraph thereof and substituting therefor a provision dismissing the appellants-respondents' fifth counterclaim. As so modified, judgment affirmed insofar as reviewed.
Order affirmed insofar as appealed from.
The plaintiff is awarded one bill of costs.
Special Term properly awarded the plaintiff the declaratory and injunctive relief it sought upon finding that the plaintiff was not in breach of various provisions of the lease. The plaintiff adequately performed its share of the responsibilities imposed by the lease in regard to parking. However, the defendants abused their inspection right, which was subject to governmental regulations, by entering the demised premises on two occasions with a concealed camera.
The lease provided, inter alia, that "[t]he Tenant shall use and occupy the demised premises for the manufacture, distribution and sale of electronic products and similar items" and that the "Tenant shall make no structural alterations in or to the demised premises without Landlord's prior written consent". The plaintiff, without prior written consent, installed exhaust systems, partitioning and air-conditioning units. The evidence showed that these alterations were necessary to enable it as tenant to use the premises in the manner set forth in the lease, were readily removable and would not injure the reversion. Thus the landlord's prior written consent was not necessary (see, Rumiche Corp. v Eisenreich, 40 N.Y.2d 174, 180; N. S. Decor Fixture Co. v V.J. Enters., 57 A.D.2d 890). Moreover, these installations were contemplated and in conformity with the previous premises occupied by the plaintiff, which the defendant Rechler inspected prior to entering into the subject lease. The evidence indicates that the plaintiff was in substantial compliance with the covenant to comply with governmental regulations (see, Vanguard Diversified v Review Co., 35 A.D.2d 102). The appellants-respondents' failure to bill the plaintiff for the water consumption which the plaintiff was obligated to pay for pursuant to the lease precludes them from claiming that the plaintiff breached the lease by failing to make such payments (see, Malloy v Club Marakesh, 71 A.D.2d 614).
The blower-motor portions of the exhaust systems the plaintiff installed were located on the roof of the demised premises. The appellants-respondents' fifth counterclaim asserted that the plaintiff used, occupied and altered the roof of the building without right or permission and in a manner not permitted by the lease. Special Term improperly awarded the appellants-respondents equitable relief limiting the plaintiff's further use of the roof. "`Except as the tenant's rights may be limited by the terms of the lease, the tenant is at liberty to erect structures, or to make non-structural alterations, for the purpose of carrying on legitimate business on the demised premises, and to remove them within the term, provided such structures or alterations will not do any serious injury to the realty'" (Rumiche Corp. v Eisenreich, 40 N.Y.2d 174, 180, supra). Here use of the demised premises was limited to "the manufacturer, distribution and sale of electronic products and similar items" and the plaintiff's installation of the exhaust systems was necessary to carry on its business. The evidence indicated that the systems caused no serious injury to the realty. Gibbons, J.P., Thompson, Niehoff and Rubin, JJ., concur.