Columbia Corrugated Container Corp. v. Skyway Container Corp.

• Decision Date: 12 October 1971
• Parties: COLUMBIA CORRUGATED CONTAINER CORPORATION, Respondent-Appellant, v. SKYWAY CONTAINER CORPORATION, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 208

326 N.Y.S.2d 208

37 A.D.2d 845

COLUMBIA CORRUGATED CONTAINER CORPORATION, Respondent-Appellant, v. SKYWAY CONTAINER CORPORATION, Appellant-Respondent.

Supreme Court, Appellate Division, Second Department.

Oct. 12, 1971.

Michael Mantell, New York City, for respondent-appellant.

Wasserman, Chinitz, Geffner & Green, Mark Rochkind, New York City, for appellant-respondent; Bernard A. Green, New York City, of counsel.

Before RABIN, P.J., and HOPKINS, MUNDER, LATHAM and SHAPIRO, JJ.

MEMORANDUM BY THE COURT.

In this action brought by a lessor against a lessee to recover on three causes of action, viz., (1) counsel fees for services rendered in prior litigation between the parties, (2) additional rent allegedly due under the lease and (3) additional counsel fees, as rent under the lease, for services rendered in the instant litigation, (a) defendant appeals from so much of an order of the Supreme Court, Nassau County, entered November 18, 1970, as granted plaintiff summary judgment on the first cause of action and (b) plaintiff cross-appeals, as limited by its brief, from so much of the same order as granted defendant summary judgment on the third cause of action.

Order reversed insofar as appealed from by defendant, and plaintiff's motion for summary judgment on the first cause of action denied; and order affirmed insofar as it granted defendant summary judgment on the third cause of action; with $10 costs and disbursements to defendant.

The facts are not in dispute. Briefly, they show the parties entered into a sublease agreement in December, 1960 which provided for additional rent in the event of an increase in taxes. In February, 1965 plaintiff billed defendant for $13,711.92 as additional rent due to increased taxes, but defendant refused to pay. In March, 1965 the lessee sought a declaratory judgment with respect to its liability for such taxes and the lessor counterclaimed for the $13,711.92. The lessor made no claim for counsel fees, although paragraph 40 of the sublease provided in pertinent part: 'In the event that it shall become necessary for landlord to enforce any provisions of this agreement or for the collection of rent or additional rent, then * * * landlord shall be entitled as further additional rent all necessary disbursements including reasonable counsel fees required for the institution or maintenance of such actions or proceedings * * * which shall be paid on or before the next installment of rent thereafter to become due.'

Judgment was entered in favor of the lessor for the full amount of its counterclaim, which judgment was fully satisfied after its affirmance on appeal.

In August, 1967 the sublease terminated and the lessee vacated the premises, leaving behind $5,500 which had been deposited as security. In March, 1968, the lessee sent the lessor a check for $374.25 and stated that that amount, plus the security deposit of $5,500, was tendered in full payment of the $5,874.25 bill rendered by the lessor to the lessee on February 1, 1968 as additional rent for increased taxes....