Madison Stores v. Enkay Sales Corp.

• Decision Date: 03 June 1955
• Citation: 207 Misc. 1091
• Parties: Madison Stores, Inc., Landlord,<BR>v.<BR>Enkay Sales Corp., Tenant, and Pill Box Pharmacy, Inc., Undertenant.
• Court: New York District Court

207 Misc. 1091

Madison Stores, Inc., Landlord,

v.Enkay Sales Corp., Tenant, and Pill Box Pharmacy, Inc., Undertenant.

June 3, 1955.

Philip H. Weekes for landlord

Alexander Stone for tenant.

Samuel Schachter for undertenant.

SILVERMAN, J.

This is a holdover summary proceeding to recover possession of the easterly ground floor store in premises 31-33 East 72nd Street, Manhattan, New York. The petitioner-landlord is the lessee of the entire first and second floors in said building under a lease dated November 1, 1954, and expiring October 31, 1975. The tenant Enkay Sales Corp. is the lessee of the store premises in question located on the first floor, under a lease dated March 25, 1951, and expiring March 31, 1962, with an option for renewal to March 31, 1972. Under a lease dated November 5, 1954, and modified on December 16, 1954, the tenant Enkay subleased the store to the undertenant Pill Box Pharmacy, Inc., which lease expires on March 14, 1962.

The landlord herein contends that it has terminated the lease of Enkay pursuant to an alleged conditional limitation set forth in paragraph 23 thereof and that the term of said tenant under said lease terminated on January 24, 1955, and that the tenant and undertenant are holding over without the consent of the petitioner. The pertinent portions of paragraph 23 of the lease read as follows: "23. (1) If Tenant shall make default in fulfilling any of the covenants of this lease other than the covenants for the payment of rent or additional rent, or if the demised premises become vacant or deserted, Landlord may give Tenant ten days' notice of intention to end the term of this lease and thereupon, at the expiration of the said ten days (if said default continues to exist) the term under this lease shall expire as fully and completely as if that day were the day herein definitely fixed for the expiration of the term, and Tenant will then quit and surrender the demised premises to Landlord but Tenant shall remain liable as hereinafter provided. (2). If the notice provided for in (1) hereof shall have been given, and the term shall expire as aforesaid; or * * *; then and in any of such events Landlord may without notice, re-enter the demised premises either by force or otherwise, and dispossess Tenant by summary proceedings or otherwise".

On January 14, 1955, the landlord served the following notice upon the tenant:

DEAR SIRS:

We have received the letter of your attorneys, Messrs. Becker, Ross & Stone, dated January 7, 1955, which states that the signs objected to in our letter to you dated December 31, 1954, have been removed, which our inspection of the premises reveals to have been the fact.

However, it has come to our attention that today new signs have been placed in the place of the old signs on the windows and door of the above store premises.

We accordingly again notify you that such action on your part or on the part of your undertenant constitutes a breach of the lease dated March 25, 1951, between Marstan Realty Corporation, as Landlord, whose successor in interest we are, and yourself as tenant with respect to the above store premises, and a default thereunder as used in Article 23 of said lease.

We hereby notify you of our intention to end the term of said lease, and that if said default continues to exist at the expiration of ten days from the date hereof, the term of said lease will expire as fully and completely as if that day were the day thereon definitely fixed for the expiration of the term, and that we, as Landlord, intend to exercise all of our rights in the circumstances.

The basis for invoking the alleged conditional limitation as set forth in paragraph "8" of the petition is that "signs have been erected upon and displayed in the windows and door of the store in violation of Section 7-A of the New York Zoning Resolution." and that such alleged violation is a breach of paragraph 39 of the tenant's lease which reads as follows: "39. It is understood and agreed that Tenant has entered into this lease and accepts the demised premises subject to all present zoning ordinances and regulations and any and all amendments thereto, and Tenant covenants and agrees that it will at all times use the premises and conduct its business therein in conformity therewith and will not violate the present or any future zoning ordinances or regulations affecting the demised premises or the building of which it is a part."

Section 7-A of the Zoning Resolution of the City of New York (adopted March 1, 1943) provides as follows: "Transition From Non-Residential To Residence Use. (a) Except as provided in paragraph (b) of this section, where a use district other than a residence district extends along a street or part of a street and the abutting property is in a residence district, a building or use on a lot, whether a corner lot or otherwise, having frontage on such street and hereafter arranged, intended or designed to be occupied for other than residence use shall not have any business entrance or exit except as hereinafter provided, or any show window or sign on such street within a distance of seventy-five (75) feet from the residence district. Within such seventy-five feet, entrances or exits not exceeding three feet six inches in width and windows other than windows designed or used for display and when required by law, exits, ventilators, fire escapes and other appurtenances may be permitted. (b) Where zoning for other than residence use is confined to a distance of not over 175 feet along both streets from an intersection, the limitations of paragraph (a) of this section shall not apply within the distance of 100 feet from such intersection. Beyond such 100 feet, entrances or exits not exceeding three feet six inches in width and windows, other than windows designed or used for display and, when required by law, exits, ventilators, fire escapes and other appurtenances may be permitted."

Subdivision (q) of section 1 of the Zoning Resolution defines a sign as follows: "A `sign' is any structure or part thereof or device attached thereto or painted or represented thereon, which shall display or...