Madison 380 Broome Realty, LLC v Robdar Rest., Inc.

[*1] Madison 380 Broome Realty, LLC v Robdar Rest., Inc. 2010 NY Slip Op 50194(U) [26 Misc 3d 137(A)] Decided on February 9, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 9, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld JJ
570061/09.

Madison 380 Broome Realty, LLC, Petitioner-Landlord-Respondent,

against

Robdar Restaurant, Inc., d/b/a Umberto's Clam House, Respondent-Tenant-Appellant.

Tenant appeals from that portion of an order of the Civil Court of the City of New York, New York County (Debra R. Samuels, J.), dated December 17, 2008, which denied its motion to dismiss the petition and granted landlord's cross motion for summary judgment in a nonpayment summary proceeding.

Per Curiam.

Order (Debra R. Samuels, J.), dated December 17, 2008, insofar as appealed from, affirmed, with $10 costs.

The motion court properly determined that the language of the governing commercial lease agreement clearly and unambiguously specified that tenant was to pay, as additional rent, 15% of any real estate tax increase. "Such escalation clauses are common in commercial leases and have been approved and enforced according to their terms" (Meyers Parking System, Inc. v 475 Park Ave. So. Co., 186 AD2d 92, 92 [1992]). Tenant's claim of waiver and laches based on landlord's alleged delay in billing for additional rent due under the lease a claim improperly raised for the first time in tenant's reply papers before Civil Court is without merit in light of the "no waiver" provision of the lease and the particular facts of this proceeding (see 458 Broadway Leasing, LLC. v Bundlee Fabrics Inc., 15 Misc 3d 135[A] [2007], 2007 NY Slip Op 50741[U]; Palace Renaissance, Inc. v Sareb Rest. Corp., 10 Misc 3d 137[A] [2005], 2005 NY Slip Op 52162[U]; cf. Transel, Inc. v Fashion Inst. of Tech., 26 Misc 3d 130[A] [2010], 2010 NY Slip Op 50033[U]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: February 09, 2010