In re 500 Fifth Ave. Inc.

• Citation: 300 N.Y. 491,88 N.E.2d 722
• Parties: Application of 500 FIFTH AVENUE, INC., Appellant.
• Decision Date: 21 October 1949
• Court: New York Court of Appeals Court of Appeals

300 N.Y. 491

88 N.E.2d 722

Application of 500 FIFTH AVENUE, INC., Appellant.

Court of Appeals of New York.

Oct. 21, 1949.

Appeal from Supreme Court, Appellate Division, First Department, 274 App.Div. 241, 80 N.Y.S.2d 227.

Proceeding in the matter of the application of 500 Fifth Avenue, Inc., landlord of premises 500 Fifth Avenue, Borough of Manhattan, City of New York, for an order pursuant to Laws of 1945, c. 314, as amended, McK.Unconsol.Laws, s 8551 et seq., to fix the emergency rent for business space occupied by the tenant Wise Shoe Company (Maryland), and another.

The Wise Shoe Company occupied the premises under a statutory tenancy following the expiration of its five year lease on August 31, 1947. The rent under the lease was a percentage of the tenant's gross income, with a minimum annual rental of $11,500 for the first two years of the term and $12,000 for the last three years of the term. The landlord contended that rent under the lease was on a graduated scale in as much as the minimum rent increased from $11,500 to $12,000 a year during the term and that the landlord was therefore entitled to a reasonable rent based on the rent charged for the most nearly comparable space, under Section 13 of the Stabilization Business Rent Law, Laws 1945, c. 314, as amended by Laws 1947, c. 823, McK.Unconsol.Laws, s 8563. The tenant cross-moved to dismiss the petition, contending that the rent under the lease was not on a graduated scale but was variable according to the volume of tenant's business and that therefore the lease fell within that part of Section 13 of the Rent Law which provided that variable leases should continue without change except in respect to minimum rent which should be subject to provisions of the act.

From so much of an order of the Supreme Court, New York County, as denied the tenant's cross-motion to dismiss the petition, the tenant appealed. The Appellate Division took a different view and held that the lease involved was a variable lease, rather than a graduated lease within the statutory concept thereof. The order, so far as appealed from, was reversed by the Appellate Division, 274 App.Div. 241, 80 N.Y.S.2d 227, and the landlord appeals.

Judgment affirmed, with costs.

All concur.