Opinion
570150/07.
Decided June 4, 2008.
Plaintiff-landlord, as limited by its brief, appeals from so much of a judgment of the Civil Court of the City of New York, New York County (Manuel J. Mendez, J.), entered June 22, 2006, after a nonjury trial, as limited its recovery for defendant-tenant's breach of a lease agreement to the sum of $45,848.00.
Judgment (Manuel J. Mendez, J.), entered June 22, 2006, affirmed, with $25 costs.
PRESENT: McKEON, P.J., DAVIS, HEITLER, JJ.
Paragraph 6.04 of the governing commercial lease agreement provided that all alterations made by defendant-tenant to the premises "which are of a permanent nature and which cannot be removed without damage to the demised premises or building shall become and be the property of landlord and shall remain upon and be surrendered with the demised premises . . . [and that] tenant shall not be required to restore the demised premises to their condition immediately prior to the making of the alterations unless landlord has advised tenant that tenant must remove designated items. . . ." Based upon the extensive trial testimony regarding the substantial damage that would result upon removal of the alterations to the demised premises made by defendant-tenant at the inception of the commercial tenancy, the trial court properly concluded that the "massive" systems installed by tenant, including supplemental air conditioning units, fire suppression system, and electrical and telecommunications systems were permanent alterations and/or fixtures within the meaning of paragraph 6.04 of the lease ( see 41 Fifth Owners Corp. v 41 Fifth Equities Corp., 14 AD3d 386; J.K.S.P Restaurant, Inc. v County of Nassau, 127 AD2d 121). The record reflects that these systems were interconnected with the subject premises, with wiring and pipes running through walls and ceilings, and between multiple floors. Inasmuch as plaintiff-landlord undisputedly failed to provide written notice to defendant that removal of the fixtures was required at the end of the lease term, defendant was under no obligation to remove the same upon its departure at the expiration of the lease term.
Although the court dismissed plaintiff's second cause of action for damages for failure to surrender the premises in good condition, plaintiff was awarded "repair damages" upon its fourth cause of action, based upon the "fair and reasonable value" of the services required to make repairs. Notably, the second and fourth causes of action were both premised on the same lease provisions requiring defendant to preserve and surrender the premises in "good order and condition." While the damage award is substantially less than that sought by plaintiff, we find that the award is supported by a fair interpretation of the trial evidence. In view of the conflicting testimony regarding the cost of repairs, and plaintiff's inflated estimate of the costs of repairs, portions of which were appropriately characterized by plaintiff's own expert witness as "ridiculously high," there is no basis to disturb the court's findings, which were based largely on credibility determinations.
Given the mixed outcome of the parties' dispute over the removal of alterations and the condition of the premises at the expiration of the lease, we find that neither party achieved prevailing party status for the purpose of receiving attorney's fees ( see Pelli v Connors, 7 AD3d 464; Walentas v Johnes, 257 AD2d 352, appeal dismissed 93 NY2d 958).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.