Square Block Assoc., Inc. v Grekos Rest., Inc.

[*1] Square Block Assoc., Inc. v Grekos Rest., Inc. 2005 NYSlipOp 50987(U) Decided on June 30, 2005 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 30, 2005
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT:
HON. WILLIAM P. McCOOE, J.P.,

HON. PHYLLIS GANGEL-JACOB HON. MARTIN SCHOENFELD, Justices.


Square Block Associates, Inc., Petitioner-Landlord-Respondent,County Clerk's #570861/03

against

Grekos Restaurant, Inc., Cal. No. 04-334 Respondent-Tenant-Appellant, "JOHN DOE" and "JANE DOE", Respondents-Undertenants.

Tenant appeals from a "decision/order" of the Civil Court, New York County, dated September 8, 2003 after a nonjury trial (Dolores J. Thomas, J.) which awarded landlord possession and a money judgment in the sum of $109,166.11 in a commercial nonpayment proceeding.

PER CURIAM:

Final Judgment entered September 17, 2003 (Dolores J. Thomas, J.) affirmed, with $25 costs. We have deemed the notice of appeal amended to state that the appeal is taken from the final judgment entered September 17, 2003 [CPLR 5520(c)].

We agree with the trial court's interpretation of the parties' lease modification agreements in landlord's favor, particularly in view of the failure of the tenant who negotiated the disputed provisions to testify at trial regarding the parties' contractual intent. The evidence, fairly interpreted, supports the trial court's express factual finding that the parties intended the base rent to escalate annually, by a five percent increase, then be reduced by an $850 deduction, an [*2]intended formula which, as the trial court properly recognized, was reflected in the illustrative, arithmetic example set out in paragraph two of the parties' September 12, 1996 lease modification agreement. A contrary holding would result in rental amounts decreasing annually, permitting tenant to reap a windfall not envisioned by the parties' agreements. Finally, giving proper effect to the "no waiver" provisions of the parties' initial lease agreement which were "expressly ratified" in the September 12, 1996 lease modification agreement, we agree that any delay by landlord in billing for the real estate tax escalation increases undisputedly incurred does not support tenant's claims of waiver or laches (see Goldstein v City of New York, 159 AD2d 313, 315 [1990]).

This constitutes the decision and order of the court.
Decision Date: June 30, 2005