Gimbel Bros., Inc. v. Brook Shopping Centers, Inc.

• Decision Date: 03 March 1986
• Citation: 499 N.Y.S.2d 435,118 A.D.2d 532
• Parties: GIMBEL BROTHERS, INC., Respondent-Appellant, v. BROOK SHOPPING CENTERS, INC., et al., Appellants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 435

499 N.Y.S.2d 435

118 A.D.2d 532

GIMBEL BROTHERS, INC., Respondent-Appellant, v. BROOK SHOPPING CENTERS, INC., et al., Appellants-Respondents.

Supreme Court, Appellate Division,

Second Department.

March 3, 1986.

Edward J. Schwarz, New York City, for appellants-respondents.

Hall, Dickler, Lawler, Kent & Friedman, New York City (Solinger Grosz & Goldwasser, P.C. [Eugene H. Gordon and Bernard Persky], of counsel), for respondent-appellant.

Before GIBBONS, J.P., and THOMPSON, BROWN and WEINSTEIN, JJ.

MEMORANDUM BY THE COURT.

In an action for declaratory and injunctive relief, the defendants appeal and the plaintiff cross appeals, as limited by their respective notice and cross notice of appeal, from stated portions of a judgment of the Supreme Court, Westchester County (Buell, J.), entered April 9, 1984.

Judgment modified, on the law, the facts and as a matter of discretion, by deleting the fourth decretal paragraph thereof. As so modified, judgment affirmed insofar as appealed from, without costs or disbursements.

In this declaratory judgment action, the court was called upon to determine the rights and obligations of the parties under a lease dated September 6, 1955. The plaintiff, Gimbel Brothers, Inc. (Gimbels), is the lessee under the lease of certain premises at the Cross County Shopping Center in Yonkers, New York. The defendant Brook Shopping Centers, Inc. (Brook) is the owner of the shopping center, and the successor in interest to the original lessor. The defendant Marx Realty & Improvement Co., Inc. (Marx) is the managing agent of the shopping center. It was stipulated by the parties that, when the lease was negotiated, "there were no discussions concerning Sunday openings of the Cross County Store". This was so because, at the time the lease was negotiated, New York's "Sunday Blue Laws" (see, former Penal Law of 1909, art. 192, now General Business Law art. 2), were still in effect. In 1976, the Court of Appeals held the prohibition against public sales on Sunday, set forth in General Business Law § 9, to be unconstitutional (People v. Abrahams, 40 N.Y.2d 277, 386 N.Y.S.2d 661, 353 N.E.2d 574). It was stipulated that the Gimbels store at the Cross County Shopping Center, which had been in business since 1955, opened on a Sunday for the first time on August 29, 1976. Gimbels admits that starting in or about January 1977 it paid approximately $10 per Sunday to the former landlord of the premises as "Sunday charges", although it alleges it had no duty under the lease to do so. As of December 1977 the "Sunday charge" was increased by the new landlord Brook to $825 per Sunday. For the period from January 1, 1978, through June 30, 1978, Gimbels admittedly paid these increased Sunday charges totaling $19,800. As of July 1, 1978, however, Gimbels ceased making these payments and subsequently commenced this action seeking a declaration that it has no duty to do so. Gimbels also sought a declaration that it had no duty to pay certain parking fines which defendants had assessed, as well as an injunction prohibiting defendants from, inter alia, "interfering with or disturbing Gimbels in its use, possession and enjoyment of the store". The trial court granted this relief, and the defendants have appealed. Gimbels also sought a declaration that it could properly set off the $19,800 in Sunday charges it had paid against future rents due to Brook under the lease, but this relief was denied by the trial court. It is from that portion of the judgment under review that Gimbels has cross-appealed. We agree with all of the trial court's findings of fact and conclusions of law, except for the holding that Gimbels is entitled to injunctive relief. We therefore modify the judgment accordingly.

First, we agree with the trial court that the defendants were not entitled to reformation of the contract so as to permit the exaction of "Sunday charges". The lease simply does not provide for such charges. Nor does the lease prohibit Gimbels from opening on Sunday, should it choose to do so. In fact, the lease provides that the landlord would, inter alia, keep the shopping center's roadways and walkways clean and well lighted "at all times that [Gimbels], in its sole discretion, shall elect to be open for business" (emphasis added). The defendants' argument is that the law as it existed in 1955 must be incorporated into the lease agreement. It is true that contracting parties may be presumed to have acted with reference to existing, rather than subsequent law (see, e.g. Moller v. Peoples Nat. Bank of Brooklyn, 258 N.Y. 373, 376-377, 180 N.E. 87; Kinney v. Kinney, 48 A.D.2d 1002, 369 N.Y.S.2d 258). However, this does not mean that a material change in the law will automatically entitle an aggrieved contracting party to reformation. Thus, for example, a landlord is not entitled to the reformation of a lease because the city, for the first time, imposes sewer rents on property owners, creating an additional burden on the landlord which, if foreseen, might have been shifted to the tenant (see, Black v. General Wiper Supply Co., 305 N.Y. 386, 113 N.E.2d 528). As the Court of Appeals has stated, "[t]he law is well settled * * * that changes in a lease are not to be presumed or implied; and no additional liability will be imposed upon a tenant unless it is clearly within the provisions of the instrument under which it is claimed" (455 Seventh Ave., Inc. v. Hussey Realty Corp., 295 N.Y. 166, 172, 65 N.E.2d 761; Black v. General Wiper Supply Co., supra, 305 N.Y. at p. 390, 113 N.E.2d 528). This principle has been repeated by the Court of Appeals in Rowe v. Great Atlantic & Pacific Tea Co., 46 N.Y.2d 62, 412 N.Y.S.2d 827, 385 N.E.2d 566 and elsewhere. "[T]he courts should be extremely reluctant to interpret an agreement as impliedly stating something which the parties have neglected to specifically include." (Rowe v. Great Atlantic & Pacific Tea Co., supra, at p. 72, 412 N.Y.S.2d 827, 385 N.E.2d 566). We conclude that the mere fact that a change in the law works to the advantage of one of the contracting parties does not alone entitle the other party to an adjustment of his contractual rights or duties so as to neutralize the affect of such a change. The trial court therefore correctly declared that Gimbels had no duty to pay "Sunday charges".

Gimbels argues, on its cross appeal, that it is entitled to restitution of the $19,800 it paid in "Sunday charges" between January and June 1978. Gimbels argues, in this regard, that such payments were made pursuant to a mistake of fact. We find, however, that the weight of evidence supports the conclusion that the payments of $825 per Sunday for 24 Sundays were made voluntarily,...