Walton v. Eastern Analytical Labs, Inc.

• Decision Date: 12 January 1998
• Parties: , 1998 N.Y. Slip Op. 181 Samuel WALTON, d/b/a Gailrach Realty Company, Appellant, v. EASTERN ANALYTICAL LABS, INC., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 407

667 N.Y.S.2d 407

246 A.D.2d 532, 1998 N.Y. Slip Op. 181

Samuel WALTON, d/b/a Gailrach Realty Company, Appellant, v. EASTERN ANALYTICAL LABS, INC., Respondent.

Supreme Court, Appellate Division,

Second Department.

Jan. 12, 1998.

Herzfeld & Rubin, P.C., New York City (Herbert Rubin, David B. Hamm, and Jeannine LaPlace, of counsel), for appellant.

Stangler, Edelman & Binder, Carle Place (Dean A. Barbakoff, of counsel), for respondent.

Before THOMPSON, J.P., and PIZZUTO, SANTUCCI and JOY, JJ.

MEMORANDUM BY THE COURT.

In an action to recover additional rent pursuant to a lease, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Burke, J.), entered December 2, 1996, as granted that branch of the defendant's motion which was for summary judgment dismissing so much of the first cause of action as seeks payment of additional rent for the period 1990 through 1993.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In 1984 the plaintiff landlord and the defendant tenant entered into a lease whereby the defendant agreed to pay additional rent based on increases in the plaintiff's operating expenses over and above the operating expenses in the base year of 1984. After two extensions, the lease expired on October 31, 1995.

Until February 1995, the plaintiff never submitted to the defendant "a statement showing the computation of the proportionate increase in operating expenses", "after the end of each calendar year" as required by the lease. As such, the plaintiff failed to perform a condition precedent pursuant to the terms of the lease. Therefore, the defendant was not liable for the additional rent due for the period 1990 through 1993 (see, Woodlaurel, Inc. v. Wittman, 199 A.D.2d 497, 606 N.Y.S.2d 39; Winfield Capital Corp. v. Mahopac Auto Glass, 208 A.D.2d 715, 617 N.Y.S.2d 499).

We note that the plaintiff does not challenge so much of the Supreme Court's order as found that it is barred by the Statute of Limitations from seeking recovery of the additional rent for the period 1985 through 1989.

THOMPSON, J.P., and SANTUCCI and JOY, JJ., concur.

PIZZUTO, J., dissents and votes to reverse the order insofar as appealed from and deny that branch of the defendant's motion which is for summary judgment dismissing so much of the first cause of action which is to recover additional rent for the period 1990 through 1993, with the following memorandum:

The lease between the plaintiff landlord and the defendant tenant contained the following provision:

"The Tenant agrees to pay as and for additional rent during the term of this lease and any and all renewals, extentions, and modifications thereof 14.8% of any increase in the Operating Expenses of the Bethpage Professional Building over and above the Operating Expenses in the Base Year.

"It is agreed that for the purpose of the preceding paragraph, the Base Year represents the calendar year 1984.

"After the end of each calendar year, the Landlord will submit a statement showing the computation of proportionate increase in operating expenses, as herein above provided.

"Within 15 days after receipt of such statement, Tenant shall pay the amount due, which shall be considered as additional rent."

In 1995 the plaintiff submitted a letter and invoices to the defendant indicating the increased operating expenses and the defendant's proportionate share for the years 1985 through 1993. The plaintiff sought payment of additional rent for the defendant's share of the increased operating expenses pursuant to the lease. When the defendant refused to pay, the plaintiff commenced the present action. The defendant sought summary judgment and dismissal pursuant to CPLR 3211, arguing, essentially, that the complaint is barred by the Statute of Limitations and that the plaintiff failed to perform the condition precedent requiring the submission by the plaintiff of "a statement showing the computation of the proportionate increase in the operating expenses". It is the defendant's position, inter alia, that the lease required the plaintiff's statement to be submitted to the defendant prior to the end of the year following the year for which the additional rent is claimed. The Supreme Court properly dismissed the complaint to the extent that it sought payment for the years 1985 through 1989, as those claims were barred by the six-year Statute of Limitations (see, Woodlaurel, Inc. v. Wittman, 199 A.D.2d 497, 606 N.Y.S.2d 39), and the plaintiff does not contest this point. However, the Supreme Court also dismissed so much of the first cause of action which was to recover additional rent for the years 1990 through 1993, stating that "the landlord failed to comply with a condition precedent, namely the requirement to provide a computation at the end of each calendar year through 1993".

Contrary to the Supreme Court's decision, the lease here does not require the plaintiff to supply the required statement at the end of...