Zaid Theatre Corp. v. Sona Realty Co.

Decision Date24 May 2005
Docket Number5448N.
Citation2005 NY Slip Op 04151,18 A.D.3d 352,797 N.Y.S.2d 434
PartiesZAID THEATRE CORP., Appellant, v. SONA REALTY Co., Respondent.
CourtNew York Supreme Court — Appellate Division

Plaintiff operates the demised premises as a movie theatre under a commercial lease expiring in May 2014. The lease requires plaintiff to repair and maintain "all equipment used in connection with the Leased Property," including "the plumbing and electrical system, and fixtures in or upon the demised premises, and all other appliances and appurtenances [sic] thereto, the heating and the ventilation and air conditioning (`HVAC') system of the entire building of which the demised premises form a part, and all sidewalks, curbs and vaults appurtenant to the said demised premises." Tenantable "repairs" within the contemplation of the lease "include all necessary replacements, renewals, alterations, additions, and betterments." However, in the event of destruction, fire or other damage, "If the demised premises are partially damaged or rendered partially unusable by fire or other casualty, the damages thereto shall be repaired by and at the expense of Landlord."

In January 2001, the roof collapsed, causing extensive damage to the leased premises. The parties agreed that temporary repairs would be made by the tenant and that the cost would be deducted from plaintiff's rent. This action was commenced in January 2003 seeking damages for loss of business due to the landlord's asserted failure to effect the necessary roof repairs. A holdover proceeding subsequently commenced by the landlord was consolidated with this action and the complaint amended to add a cause of action seeking a declaration that the notice to cure, relevant to the holdover proceeding, had been improperly served. The added cause of action was subsequently discontinued upon a referee's finding that service of the notice was ineffective. Because the landlord demanded payment of alleged rent arrears in connection with its holdover proceeding, the complaint was amended a second time to add an action for declaratory judgment to determine the amount that plaintiff owed.

In June 2004, the landlord served a second 10-day notice to cure, asserting that plaintiff had failed to make necessary repairs to the demised premises. Defendant also made a letter demand for the payment of $102,112.05 in real estate taxes alleged to be plaintiff's obligation under the lease. Plaintiff timely brought the instant motion to toll the period to cure the alleged lease violations (First Natl. Stores v Yellowstone Shopping Ctr., 21 NY2d 630 [1968]) and to amend its complaint to challenge the real estate taxes charged to it and the validity of the repairs demanded in the notice to cure, imploring the court to "make a determination as to the parties' obligations with respect to any alleged necessary repairs."

In response, the landlord maintained that the items listed in its notice to cure are clearly plaintiff's responsibility under the lease. It further contended that it would be prejudiced by the delay attendant upon judicial determination of the parties' respective repair obligations, and therefore urged denial of the proposed amendment to the complaint. Finally, the landlord alleged that plaintiff had neither the desire nor the ability to cure its default.

In reply, plaintiff noted that it had already effected certain repairs recommended by its insurance carrier and that there was no impending danger to the building. Plaintiff asserted both its ability and desire to effectuate any necessary repairs so as to preserve the value of its leasehold and continue the operation of its business.

In a short-form order, Supreme Court briefly recited the history of the case over its year-and-a-half duration, attributing particular significance to the prior, second amendment to the complaint, responding to the allegations contained in the previous...

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