Old Line Co. v. Getty Square Dept. Store, Inc.
| Decision Date | 21 June 1971 |
| Parties | OLD LINE COMPANY, Petitioner-Landlord, v. GETTY SQUARE DEPARTMENT STORE, INC., Respondent-Tenant. |
| Court | New York City Court |
Lauterbach & Lauterbach, by Leon A. Lauterbach, Yonkers, for petitioner-landlord.
Moore & Romm, by Milton Romm, Yonkers, for respondent-tenant.
In this summary proceeding, the Court is called upon to interpret a clause found in the Real Estate Board of New York standard form of store lease. That clause, contained in Article 9, reads as follows:
'If the demised premises are totally damaged or are rendered wholly untenantable by fire or other cause, and if Landlord shall decide not to restore or not to rebuild the same, or if the building shall be so damaged that the Landlord shall decide to demolish it or to rebuild it, then or in any of such events Landlord may, within ninety (90) days after such fire or other cause, give Tenant a notice in writing of such decision * * * and thereupon the term of this lease shall expire by lapse of time upon the third day after such notice is given, and Tenant shall vacate the demised premises and surrender the same to Landlord.'
On January 11, 1971 a fire occurred damaging the demised premises--a retail store--of the Tenant, and on February 19, 1971, Landlord sent the Tenant a written notice of termination of lease pursuant to Article 9 on the grounds that the 'leased premises' of the Tenant 'became untenantable' and that the Landlord had decided 'not to rebuild the same'. A trial was held at which the Landlord introduced photographs of the premises after the fire, and the Tenant produced, as an expert, an architect who testified at length to the degree of damage.
Much was made at the trial and in the briefs submitted to the Court of the so-called 'marine rule.' This provides that if the cost of restoration is more than one-half the value of the building just before the fire, then there is total destruction (Corbett v. Spring Garden Ins. Co., 155 N.Y. 389, 50 N.E. 282.) Courts have also made use of this standard in cases involving language such as 'substantial destruction' and if the damage is so extensive 'as to amount practically to the total destruction,' (Leone v. Russo, 190 Misc. 984, 76 N.Y.S.2d 347, aff'd 275 A.D. 674, 87 N.Y.S.2d 220; Bettinelli v. Peterson Kane, Inc., 62 Misc.2d 444, 308 N.Y.S.2d 1023.)
Whether or not the application of the marine rule would lead the Court to find that the premises were 'totally damaged,' the fact that the provision in the lease contains the term 'wholly untenantable' seems plainly to contemplate the possibility that the premises may be rendered untenantable without being totally damaged (See 49 Am.Jur.2d, Section 607.) No case has been brought to the Court's attention in which the marine rule was applied to 'tenantability', nor does the lease describe the manner in which tenantability is to be determined.
The Courts have generally defined tenantability not in terms of amount of damage or destruction, but in terms of fitness for occupancy. In Gerson v. Blanck, 79 Misc. 24, 139 N.Y.S. 47, the Court held that a tenantable condition is 'such condition as would permit use by a tenant without violation of the law, for the purposes contemplated by the lease.' The converse, 'untenantable,' has been held to mean 'not fit to be rented or occupied by a tenant,' (Reischmann v. L. N. Hartog Candy Co., Sup., 132 N.Y.S. 435.)
The proof adduced at the trial in the instant case shows that the premises have not been occupied or used at all by the Tenant since the date of the fire. This fact, by itself, would not be at all conclusive, for the Court must inquire into whether the Tenant might have occupied the premises. (It should be noted that there may be occupancy not inconsistent with a claim that the premises occupied were, in fact, untenantable (Kip v. Merwin, 52 N.Y. 542)). In addition, however, the evidence indicates that a large portion of the roof was destroyed, opening part of the premises to the sky; that the non-structural elements were damaged to the extent of 80%, these including the interior stairway, the roofing, which was totally destroyed, and the interior partitions which either showed substantial fire damage or were collapsed; and that the finishes were damaged to the extent of 35%, with the floor, wall and ceiling finishes being totally destroyed. In addition, evidence was also introduced to the effect that the electrical system was 95% Destroyed, and that the air conditioning and heating systems were both 100% Destroyed. The question as to whether the installation, maintenance and repair of these systems were the responsibility of the Landlord or the Tenant under the the lease is independent of the question of whether the premises were tenantable; the fact remains that the premises were without power, heat or air...
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