Tilbern Realty, Inc. v. Lax Drug Co.

• Decision Date: 17 April 1969
• Citation: 59 Misc.2d 515,299 N.Y.S.2d 758
• Parties: TILBERN REALTY, INC., Plaintiff, v. LAX DRUG CO., Inc. and Joseph J. Milana, Jr., defendants.
• Court: New York City Court

Page 758

299 N.Y.S.2d 758

59 Misc.2d 515

TILBERN REALTY, INC., Plaintiff, v. LAX DRUG CO., Inc. and Joseph J. Milana, Jr., defendants.

Civil Court of the City of New York, New York County,

Special Term, Part I.

April 17, 1969.

Korkus & Korkus, New York City, for plaintiff.

Stanley F. Meltzer, New York City, for defendants.

IRVING YOUNGER, Judge.

In 1952, plaintiff's assignor leased to defendants' predecessors a drug store located in the building at 360 Lenox Avenue, in the Harlem section of New York City. There were renewals from time to time thereafter, the most recent dated Sept. 30, 1967, and running to April 30, 1974.

On April 4, 1968, Martin Luther King, Jr., was murdered: rioting broke out in Harlem. During these disorders, the building at 360 Lenox Avenue was damaged. A few days later, fire demolished the store.

Plaintiff promptly began to repair the premises. Defendants meanwhile informed plaintiff that they did not intend to reopen the store or reoccupy their space. By August 2, 1968--some four months after the fire--the store had been reconstructed. Plaintiff tendered possession back to defendants. Consistently with their earlier advice to plaintiff, defendants declined the tender.

The consequences of defendants' declination are now to be determined.

In November, 1968, plaintiff began this suit. The complaint contains five causes of action. The first seeks rent for the period from April 1, 1968, through April 4, 1968. The second through the fifth causes of action seek rent and other charges as additional rent for the period following tender of possession by plaintiff to defendants, various expenses incurred in boarding up the store after defendants' declination of plaintiff's tender, and counsel fees.

Defendants' answer, in substance, concedes the first cause of action and contests the rest on the ground that defendants were entitled to terminate the tenancy on April 4, 1968. In addition, defendants counterclaim for their security deposit.

Defendants have moved for summary judgment dismissing the second, third, fourth and fifth causes of action, and in their favor on the counterclaim. Plaintiff has cross-moved for summary judgment on the complaint.

Defendants rest their case on Sec. 227 of the Real Property Law:

'Where any building, which is leased or occupied, is destroyed or so injured by the elements, or any other cause as to be untenantable, and unfit for occupancy, and no express agreement to the contrary has been made in writing, the lessee or occupant may, if the destruction or injury occurred without his fault or neglect, quit and surrender possession of the leasehold premises, and of the land so leased or occupied; and he is not liable to pay to the lessor or owner, rent for the time subsequent to the surrender. * * *'

Hence, defendants urge, they were free to quit the store on April 4, 1968, and are not liable to pay rent or related expenses for any period thereafter.

Conceding that Sec. 227 controls unless an 'express agreement to the contrary has been made in writing,' plaintiff points to Par. 11 of the lease as such an agreement:

'If the demised premises shall be partially damaged by fire or other cause without the fault or neglect of Tenant, Tenant's servants, employees, agents, visitors or licensees, the damages shall be repaired by and at the expense of Landlord, and the rent until such repairs shall be made shall be apportioned according to the part of the demised premises which is usable by Tenant. No penalty shall accrue for reasonable delay which may arise by reason of adjustment of fire insurance on the part of Landlord and/or Tenant, and for reasonable delay on account of 'labor troubles,' or any other cause beyond Landlord's control. But if the demised premises are rendered wholly untenantable by fire or other cause, and Landlord shall decide not to rebuild the same, or if the building shall be so damaged that 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, which notice shall be given as in Article 32 hereof provided, 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.'

Since it never gave defendants notice of termination of the tenancy, plaintiff urges, the tenancy never ended, and when plaintiff rebuilt the store and tendered possession to defendants, the defendants' obligation to pay rent was revived.

Section 227 says, in substance, that a total destruction of the premises permits the tenant to terminate the tenancy. If this relief were not available to him, a tenant whose premises have been demolished would be required to continue to pay rent for the use of space that is no longer usable. Compare New York Real Estate & Building Improvement Co. v. Motley, 143 N.Y. 156, 160, 38 N.E. 103, 104 (1894). The parties to a lease are free, under the statute, to agree to some other rule with respect...