Hotel Ten Park Ave. v. Tepper

• Decision Date: 03 November 1955
• Citation: 146 N.Y.S.2d 586,3 Misc.2d 751
• Parties: HOTEL TEN PARK AVENUE, Inc., Landlord-Appellant, v. Robert TEPPER, Tenant-Respondent.
• Court: New York Supreme Court

Page 586

146 N.Y.S.2d 586

3 Misc.2d 751

HOTEL TEN PARK AVENUE, Inc., Landlord-Appellant, v. Robert TEPPER, Tenant-Respondent.

Supreme Court, Appellate Term, First Department.

Nov. 3, 1955.

Hyman W. Sobell, New York City, Sigmund Moses, New York City, of counsel, for appellant.

Morris J. Fellner, New York City, Theodore Daniels, Brooklyn, of counsel, for respondent.

Before EDER, SCHREIBER, and HECHT, JJ.

PER CURIAM.

The lease under which tenant went into possession provided for the payment of a variable rent based upon the volume of the tenant's business and, in addition, for the payment of a fixed, basic or minimum rent, and was subject to all of the provisions of the Emergency Business Space Rent Control Law, McK.Unconsol.Laws, § 8551 et seq. The fact that the lease provided that the annual rent for the first three years of he term was $5,000 and $6,000 for the last two years, did not make it a graduated lease within the statutory concept of a graduated lease. Matgraduated of 500 Fifth Avenue (Wise Shoe Co.), 274 App.Div. 241, 80 N.Y.S.2d 227, affirmed 300 N.Y. 491, 88 N.E.2d 722.

The emergency rent is the annual rent paid on June 1, 1944, that is, $5,000, plus 15% of said amount, making a total of $5,750, not, as landlord claims, 15% of $6,000, the amount payable at the time the lease expired. An additional increase of 15% is allowed landlord by reason of the amendment to Section 8552, ch. 447, Laws of 1954. This amounts to $6,612,50 per annum.

The landlord having claimed an erroneous amount in the petition, the final order should be affirmed without costs and without prejudice to a new proceeding to collect the correct amount.

Final order affirmed, without costs, without prejudice to a new proceeding.

All concur.