TAG 380 LLC v JP Morgan Chase Bank

[*1] TAG 380 LLC v JP Morgan Chase Bank 2006 NY Slip Op 51156(U) [12 Misc 3d 1172(A)] Decided on June 22, 2006 Civil Court Of The City Of New York, New York County Mendez, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2006
Civil Court of the City of New York, New York County

TAG 380 LLC, as successor in interest to URIS 380 Madison Corporation and Spartan Madison Corporation, Plaintiff,

against

JP Morgan Chase Bank, as successor in interest to Chemical Bank, Defendant.



300405 TSN 2005



Attorneys for plaintiff:

Miller & Wrubel, P.C.

By: Charles R. Jacob III, Esq.

Of Counsel

Attorneys for defendant

Kay & Sholer, LLP

By: Richard C. Seltzer, Esq.

Of Counsel

Manuel J. Mendez, J.

Plaintiff brings this Breach of contract action to recover from the defendant on six separate causes of action. Plaintiff alleges defendant is liable on the First cause of action in an amount not less than $3,000,000., for failure to restore the leased premises, 380 Madison Avenue, to their original condition, with respect to alterations, upon the expiration of the lease as set forth in §6.04 of the lease. On the Second cause of action in an amount not less than $3,000,000., for failure to keep the leased premises in good working order and condition as required by §7.01 of the lease. On the Third cause of action in an amount to be proven at trial, for failure to comply with §8.01 of the lease. On the Fourth cause of action in an amount to be proven at trial, for failure to comply with §§6.05 and 28.01 of the lease. On the Fifth cause of action [*2]in an amount not less than $314,737.92 for failure to pay additional rent as set forth in §3.02 of the lease. On the Sixth cause of action in an amount not less than $64,764.65 for failure to pay additional rent based on changes in taxes as set forth in §3.03 of the lease.

This matter was referred to this court on April 24,2006 for a trial. During the trial the parties entered into a stipulation of settlement on the record to resolve the Third, Fifth and Sixth causes of action, for a total sum of $308,606.13 inclusive of interest through April 30, 2006.[check No. 1296126 for $311,887.39 was tendered on June 21,2006]. The trial proceeded with respect to the First, Second and Fourth causes of action.

Plaintiff alleges that at the time defendant vacated the premises it was supposed to remove major tenant alterations such as:

A Glycol cooling system, double glazed windows on 13th floor, supplemental air-conditioning units, a Halon fire suppression system, Electrical and telecommunications wiring, a UPS system.

It is also alleged that defendant failed to make repairs to the building plumbing system in the bathrooms, and that defendant failed to leave the premises in good repair and broom clean condition, as evidenced by a punch list of items in disrepair given to defendant on October 15, 2002.

Defendant counters that pursuant to§6.04 of the lease it was not required to remove the major alterations, nor pursuant to §7.01 to make repairs to the plumbing system in the bathroom. Finally defendant asserts that it left the premises in good working order and in a broom clean condition, ordinary wear and tear excepted, as contemplated in §28 of the lease.

TRIAL

At trial plaintiff presented the testimony of four live witnesses, Mr. Raymond Cuddy, the property manager at the subject premises; Mr. Ted D'Alessandro, the building's chief engineer; Joseph Riccardi, self-employed at "Persistence Construction"; Mr. Charles Guigno, managing director of Stamack construction; and the video deposition testimony of Steven Chapman taken on April 18, 2006. In 1993 Mr. Chapman was employed by HRO International and was responsible for operations and construction at the subject building. [*3]

Defendant presented the testimony of James Burgess who managed the space at 380 Madison Avenue for defendant from 1998-2002; Mr. Jesus Soto a maintenance handyman employed by Cushman & Wakefield at the premises; and Mr. Joseph Gottdant, an electrician for 20 years, employed by Unity Electric who performed disconnect work at the premises.

FACTUAL BACKGROUND

In 1981 Chemical Bank leased Six floors 9-14 at 380 Madison Avenue

( hereinafter the "premises") from Uris 380 Madison Corp. In 1989 the 15th floor was added and a portion of the 2nd Floor in 1997. In 1989 the property was sold to 380 Madison Avenue Partnership, a wholly-owned affiliate of HRO International, Ltd. Spartan Madison Corp., subsequently became the landlord, retaining HRO as managing agent until February 2001. Plaintiff TAG 380 bought the lease to the building in February 2001 becoming the landlord one and a half years before the lease expired in September 30, 2002. [ see Defendant's Trial Memorandum]. Defendant

occupied the premises for a period of 20 years and made numerous alterations to the premises, in accordance with the lease.

The relevant sections of the lease, an extensive document consisting of one hundred and twelve pages, are §§6.01,6.04,6.05,6.06,7.01(a)(b),28.01,and 31.01.

The relevant portions of these sections of the lease state as follows:

§6.01- "Tenant shall make no alterations, installations,

additions or improvements in or to the demised premises

without Landlord's prior written consent except that

Landlord's consent shall not be required for non-structural

alterations costing less than $35,000...(iv) prior to commencement

of any such alterations, tenant WILL GIVE LANDLORD

WRITTEN NOTICE THEREOF together with plans and

specifications for the work, and will otherwise comply

with the provisions of this article. Notwithstanding the

provisions of the next preceding sentence, tenant shall not be

obligated to give landlord plans and specifications for alterations

costing less than $5000 unless tenant shall have prepared such

plans and specifications in connection with such alterations.

All alterations shall be done only by contractors or

mechanics first approved by landlord, [*4]

which approval shall not be unreasonably withheld or delayed.....

Prior to commencement of such work, tenant shall obtain and

deliver to Landlord written, unconditional waivers of mechanic's or

other liens on the real property on which the demised

premises are located, signed by all architects, engineers,

contractors, mechanics and designers to become involved in

such work."

"Any tenant's work in the demised premises shall be effected

solely in accordance with plans and specifications first

approved in writing by landlord if such plans and specifications

are required to be submitted to landlord hereunder...."

§6.04(a)-" All alterations made and installed by tenant, or at tenant's expense, upon or in the demised premises which are of a PERMANENT NATURE and which cannot be removed without DAMAGE TO THE DEMISED PREMISES or building shall become and be the PROPERTY OF LANDLORD, and shall remain upon and be surrendered with the demised premises as a part thereof at the end of the term of this lease. Notwithstanding the provisions of this section 6.04, tenant shall not be required to restore the demised premises to their condition immediately prior to the making of the alterations unless landlord has advised tenant that tenant must remove designated items of such alterations work which items of alterations work shall be considered in landlord's reasonable opinion to be non-building standard type office installations such as stairways, slab openings, special electronic data processing or communication installations, vaults, food preparation facilities, private lavatories, projections rooms, etc. (I) at the time landlord has approved tenant's plans with respect to such alterations, or (ii) if no such approval is required, within 30 days after submission of such plans for such alterations. In the event of such notice, tenant will, at tenant's own cost and expense, remove the same in accordance with such request, and restore the demised premises to their original condition, ordinary wear and tear and casualty excepted unless landlord advises tenant prior to the end of the term of the lease that landlord has elected to allow items to remain in the demised premises."

§6.05- " where furnished by or at the expense of tenant, all furniture, furnishings and trade fixtures, including without limitations, murals, business machines, and equipment, counters, screens, grille work, special paneled doors, cages, partitions, metal railings, closets, paneling, lighting fixtures and equipment, drinking fountains, [*5]refrigeration and air handling equipment, and any other MOVABLE PROPERTY shall remain the property of tenant which may at its option remove all or any part thereof at any time prior to the expiration of the term of this lease. In case tenant shall decide not to remove any part of such property, tenant shall notify landlord in writing not less than three(3) months prior to the expiration of the term of this lease, specifying the items of property it has decided not to remove. If, within thirty (30) days after the service of such notice, landlord shall request tenant to remove any of the said property, tenant shall at its expense remove the same in accordance with such request. As to such property which landlord does not request tenant to remove, the same shall be, if left by tenant, deemed abandoned by tenant and thereupon the same shall become the property of landlord."

§6.06- " If any alterations or other property which tenant shall have the right to remove or be requested by landlord to remove as provided in sections 6.04 and 6.05 hereof

( herein in this section 6.06 called the "property") are not removed on or prior to the expiration of the term of this lease, landlord shall have the right to remove the property and to dispose of the same without accountability to tenant and at the sole cost and expense of tenant. In case of any damage to the demised premises or the building resulting from the removal of the property tenant shall repair such damage or, in default thereof, shall reimburse landlord for landlord's cost in repairing such damage. This obligation shall survive any termination of this lease."

§7.01(a)-" Tenant shall, at its sole cost and expense, make such repairs to the demised premises and the fixtures and appurtenances therein as are necessitated by the act, omission, occupancy or negligence of tenant or by the use of the demised premises in a manner contrary to the purposes for which same are leased to tenant, as and when needed to preserve them in good working order and condition. Except as otherwise provided in section 9.05 hereof, all damage or injury to the demised premises and to its fixtures, appurtenances and equipment or to the building or to its fixtures, appurtenances and equipment caused by tenant moving property in or out of the building or by installation or removal of furniture, fixtures or other property, and for which landlord has not been reimbursed by insurance( provided the foregoing provision shall not prevent or diminish the amount of insurance proceeds to be paid to landlord by landlord's insurance company) shall be repaired, restored or replaced promptly by tenant at its sole cost and expense, which repairs, restorations and replacements shall be in quality and class equal to the original work or installations. If tenant fails to make such repairs, restoration or replacements, same may be made [*6]by landlord, after ten(10) days written notice to tenant, at the expense of tenant and such expense shall be collectible as additional rent and shall be paid by tenant within 15 days after rendition of a bill therefor."

(b) " Landlord shall make repairs to (I) the electrical, plumbing, heating, ventilation and air-conditioning systems of the building that service the demised premises, and (ii) TO LANDLORD'S PLUMBING FIXTURES AND PLUMBING HARDWARE IN THE CORE TOILETS, but landlord shall not make any repairs to any of tenant's installations or alterations in the demised premises

( including without limitation, supplemental type systems) or any basic building system that has been modified or changed by tenant..."

§28.01- " Upon the expiration or other termination of the term of this lease, tenant shall quit and surrender to landlord the demised premises, BROOM CLEAN, in good order and condition, ORDINARY WEAR AND TEAR and damage by fire, the elements or other casualty excepted, and tenant shall remove all of its property as herein provided. Tenant's obligation to observe or perform this covenant shall survive the expiration or other termination of the term of this lease."

§31.01- " Any notice or demand, consent, approval or disapproval, or statement required to be given by the terms and provisions of this lease, or by any law or governmental regulation, either by landlord to tenant or by tenant to landlord, SHALL BE IN WRITING. Unless otherwise required by such law or regulation, such notice or demand shall be given, and shall be deemed to have been served and given two(2) days after such notice or demand is mailed by registered or certified mail return receipt requested, enclosed in a securely closed, postpaid wrapper, deposited in a United States government general or branch post office, or official depository within the exclusive care and custody thereof, addressed to Landlord at the address set forth on page 1 of this lease, and addressed to tenant at...."

[see plaintiff's No. 1 in evidence]

During the term of the lease defendant made numerous additions and alterations to the premises. It installed a Glycol cooling system, which is a massive installation of machines sitting atop the building's 13th floor set back. It has heat exchangers, fans , pumps, switches, wires, ducts and piping that run throughout the building from the 9th through the 14th floor. It is also connected to supplemental air-conditioning units throughout the building. [ see Testimony Ted D'Alessandro]. This system along with the supplemental air-conditioning system can only be removed at great expense and damage to the premises. The systems are completely intertwined with the space. To [*7]remove them the ceilings and floors have to be lifted. The Supplemental air-conditioning systems, connected to the Glycol system have duct work to vent throughout the rooms. There are pipes under the floor tied into the base of the building to deliver water to the unit. [ see Testimony James Burgess, Defts E & G in evidence]. The components of the supplemental air-conditioning system are visible throughout the seven floors [9th-15th]. The pipes, wires, ducts go through walls, ceilings and floors. [ D'Alessandro testimony].

Defendant also installed a Halon fire suppression system. It is tied to the premises and can only be removed by taking out the ceilings, lifting floors and going into walls, thereby causing extensive damage to the premises. [see Burgess testimony]. Additionally, defendant installed an Uninterrupted Power Supply (UPS) system, weighing about 5,000 pounds, to insure power in the event of a power failure. There are wires running through conduits, cable trays and LAN rooms from one floor to another throughout the premises [Testimony Ray Cuddy]. To remove the UPS system would cause damage to the premises because would have to tear up floors and walls[ Burgess testimony] [ Joseph Gottdant testimony].

There are Electronic Data Processing cables that run throughout the premises, through floors, walls and ceilings. To remove these wires there would have to be major demolition of the premises. Ceilings, floors and walls would have to be torn. [Gottdant testimony]. These wires run to electric closets that are kept locked by the landlord. In order for the tenant to have access to these closets it must request it from the landlord.

When defendant vacated the premises it took photographs to show the condition of the premises at the time. It also toured the premises with a representative of plaintiff. During the tour defendant was not told that it had to remove or replace anything. After defendant had left the premises plaintiff served on defendant a "punch list" of items that needed to be removed from the premises or repaired. The items that needed repair were considered to be damaged beyond "ordinary wear and tear". [see plaintiff's 7 in evidence]. Defendant concedes certain items on the punch list show damage beyond wear and tear [ see defendant's T in evidence].

One of the items which plaintiff places on the list, which defendant does not concede it is responsible for, is damage to the plumbing fixtures in the toilets. Defendant asserts that landlord was responsible for repairing these and that tenant was only responsible for the stalls[ see testimony Jesus Soto]. [*8]

In preparation for this litigation plaintiff asked Mr. Joseph Riccardi to prepare an estimate of the cost to remove the items it claims must be removed, to repair the items it claims must be repaired and to replace the items it claims must be replaced. [ see plaintiff's 11, 12,13 & 14 in evidence].Mr. Riccardi took the punch list, walked through the premises and placed a value on the job to remove repair or replace the items on the list. He admitted that his estimate is not accurate because he needs to have plans before he can make an accurate estimate. He based his conclusions on the fact that the premises are situated in a class "A" building and the Union trades must be called in to perform the job. Mr. Riccardi estimated that in this building it cost $500 to remove a steel clip, $1500 to remove paper from a vent, $14900 to remove double glaze windows, $250 to replace a light switch, to replace ceiling tiles $6200. He admitted his estimate is inflated by 3%-5% to compensate for the lack of plans. Finally he stated that after he provided the estimate to plaintiff " they didn't ask for a lower price".[ Riccardi testimony]. In the words of Mr. Raymond Cuddy, these prices are " ridiculously high"[ see testimony Mr. Cuddy].

Defendant presented the testimony of Mr. Jesus Soto, handyman at the premises, and of Mr. Gottdant, the licensed Union electrician who worked on the move out. They went through the list of items conceded by defendant it needed to repair, remove or replace and arrived at a figure far less than that arrived at by Mr. Riccardi. The number arrived at, taking into consideration the cost of materials and total man hours is $37,848.00 to repair, remove or replace items damaged beyond ordinary wear and tear. [see testimony Soto, Gottdant, Defendant's W]. On cross-examination Mr. Ricciardi conceded that" if there was no need to remove the Glycol system, then the cost of removing the double glazed windows would be $5000 to $6000 dollars because only the inside glazing, soffit and convector covers would have to be removed. Removal of the glass alone would cost approximately $2000 but there would be a need for other people to do other things involved such as painting".

[ Ricciardi testimony].

Finally, plaintiff did not request defendant remove the Glycol cooling system, Supplemental air-conditioning system, Halon fire suppression system, UPS system, or Electronic Data Processing wires at the time of their installation or within 30 days thereafter.

LEGAL ANALYSIS

Ordinarily it is the court's responsibility to interpret written instruments ( New [*9]Hampshire Ins. Co., v. Wellesley Capital Partners, Inc., 200 AD2d 143, 612 NY S. 2d 407). In the interpretation of the written instrument the court has analyzed the applicable provisions of the lease in their entirety, searching for the probable intent of the parties. In searching for the probable intent of the parties the fair and reasonable meaning of the words control ( Sutton v. East River Savings Bank, 55 NY2d 550, 450 NYS2d 460, 435 NE2d 1075). When the terms of the contract are clear and unambiguous the intent of the parties must be found within the four corners of the contract ( Goldstein v. Accuscan, Inc., 2 NY3d 811; Signature Realty, Inc., v. Tallman, 2 NY3d 810, 781 NYS2d 259, 814 NE2d 429; Greenfield v. Philles Records, Inc., 98 NY2d 562, 750 NYS2d 565, 780 NE2d 166; Slamow v. Del Col, 174 AD2d 725, 571 NYS2d 335, aff'd, 79 NY2d 1016, 584 NYS2d 424, 594 NE2d 918; Wood v. Maggie's Tavern, Inc., 257 AD2d 733, 683 NYS2d 353).

The court should construe the contract with due consideration to execution, circumstances and purpose and give the agreement fair and reasonable interpretation. Primary attention must be given to the purpose of the parties in making the contract (Greenfield v. Philles Records Inc., Supra; Matter of Herzog, 301 NY 127, 93 NE2d 36; Massachusetts Mutual Life Ins. Co., v. Thorpe, 260 AD2d 706, 687 NYS2d 490; Evans v. Famous Music Corp., 1 NY3d 452, 775 NYS2d 757, 807 NE2d 869). Further, the document should be read as a whole to ensure that excessive emphasis is not placed upon particular words or phrases( South Road Associates, LLC v. International Business Machines Corp., 4 NY3d 272, 793 NYS2d 525, 794 NE2d 667).

In cases of doubt or ambiguity, a contract must be construed most strongly against the party who prepared it and favorably to a party who had no voice in the selection of its language ( 67 Wall Street Co., v. Franklin National Bank, 37 NY2d 245, 371 NYS2d 915, 333 NE2d 184; Lai Ling Cheng v. Modansky Leasing Co., Inc., 73 NY2d 454, 541 N.Y.S. 742, 539 NE2d 570; Coliseum Towers Associates v. Nassau, 2 AD3d 562, 769 NYS2d 293; Croman v. Wacholder, 2 AD3d 140, 769 NYS2d 219; Mario & Di Bono Pastering Co., Inc., v. Rivergate Corp., 140 AD2d 164,527 N.Y.S. 417). The same rules of construction applicable to contracts generally apply in the interpretation of leases ( George Backer Management Corp., v. Acme Quilting Co., Inc., 46 NY2d 211, 413 NYS2d 135, 385 NE2d 1062; State v. Robin Operating Corp., 3 AD3d 757, 773 NYS2d 131).

The relevant clauses in the lease are clear and unambiguous. §6.01prohibit tenant from making structural alterations to the premises without landlord's prior [*10]written consent. It also confers on Landlord the prerogative of approving contractors, setting the time and manner work is to be performed, and compels tenant to obtain waiver of mechanic's and other liens on the real property signed by architects engineers, contractors, mechanics and designers involved in the work. These unconditional waivers were to be delivered to landlord prior to commencement of the work.

It therefore is a logical conclusion that prior to defendant's installation of the Glycol System, supplemental air-conditioning system, Halon fire suppression

system , Electronic Data Processing installations or UPS system the landlord had to be on notice that these systems were going to be installed. Otherwise tenant would have been in violation of this clause in the lease. There is nothing on the record of this trial evincing tenant's non-compliance with §6.01 of the lease.

§6.04 makes all alterations of a permanent nature and which cannot be removed without "damage" to the premises or building property of landlord. Tenant shall not be required to restore the premises to the condition it was prior to the alterations unless it has been so advised by landlord within 30 days of approving the alteration or within 30 days of submission of plans for the alteration if no approval is required. Included in the list of alterations considered to be of a permanent nature are stairways, slab openings, SPECIAL ELECTRONIC DATA PROCESSING OR COMMUNICATION INSTALLATIONS, vaults, food preparation facilities, private lavatories, projections rooms.

It is undisputed that following installation of these systems there was no notice from landlord to tenant that the premises had to be restored to their condition prior to the system's installations. [see Cuddy testimony " no letter from landlord or any writing from landlord advising tenant to remove these items, no writing advising tenant to remove projection room at end of lease, don't recall saying electrical should be removed, got letter asking if supplemental air conditioner should be removed. I responded saying they could leave them there. I checked with management and they agreed with me"].[ see D'Alessandro testimony " not aware of any letter from landlord to tenant to remove electric wire or data processing. Didn't find a letter from former or current landlord to that effect. Didn't find writing requiring removal of air conditioning system from landlord to tenant".]. The only letter sent by landlord to tenant pertained to the double glazed window s installed on the 13th floor set back. This letter made reference to the Glycol cooling system, but it was sent years after the system had been installed. §6.04 of the lease gives landlord only 30 days to request [*11]the restoration otherwise it is waived. A waiver may be accomplished by affirmative conduct or by failing to act so as to evince an intent not to claim a purported advantage ( Tatko v. Sheldon Slate Products Co., Inc., 2 AD3d 1030, 769 NYS2d 626). With respect to the Glycol system the landlord failed to act within the period allowed by the lease, therefore it has waived the right to request the same be removed.

§6.05 relates to MOVABLE PROPERTY and trade fixtures which remain the property of the tenant and must be removed at the expiration of the lease. If tenant intends to leave the property it must give landlord notice no less than 3 months prior to the end of the lease. If tenant fails to give such notice then landlord may remove the property at tenant's expense.

There is no evidence that tenant sent landlord a writing to the effect it was leaving property falling under this section in the premises. Tenant failed to give landlord notice that it was leaving shelving, blinds, projection screens, counters and signs. This movable property belongs to tenant and it must be removed by tenant or by landlord at tenant's expense. Defendant has conceded that it must remove this property except for the projection screen. Defendant must remove the projection screen from the premises or plaintiff may remove the same at defendant's expense. Mr. Ricciardi makes an allowance of $6000 to remove the projection screen devises in the conference and training rooms [ see plaintiff's 11 & defendants "A" in evidence]. Given that the witness numbers been have shown to be inflated, this court will discount this figure by 50% and award plaintiff $3000 for the removal of these devices.

Plaintiff argues that the Glycol system, air-conditioning system, Halon fire suppression system, UPS system, Electronic Date processing installations are all trade fixtures and fall under §6.05, because they can all be removed.

"The law of fixtures was evolved by the judiciary in order to ameliorate the harsh result to those who substantially improved property but who had less than a fee interest. The view in New York is broad. Here machinery is deemed a fixture when it is installed in such a manner that its removal will result in material injury to it or the realty, or where the building in which it is placed was specially designed to house it, or where there is other evidence that its installation was of a permanent nature."

( Walter C. Rose v. State of New York, 24 NY2d 80,298 NY S. 2d 968, 246 NE2d 735; Whitehall Corners, Inc., v. State of New York, 210 AD2d 398, 620 NYS2d 126[2nd. Dept. 1994]). Refrigerating machinery, boilers built into a building, electric [*12]wiring, pipes to conduct electricity and gas from one part of the building to another considered a part of the realty after installation and not fixtures ( In re City of New York, 101 A.D. 527, 92 NY S. 8[1st Dept. 1905]).

Under New York law, in order to promote efficient use of leased property by a tenant, "trade fixtures", which is a fixture or improvement that is annexed to real property by tenant for purpose of carrying on its business during a lease term, retains its classification as personal property to the extent that it can be removed without substantial injury to the freehold ( J.K.S.P. Restaurant, Inc. V. Nassau County, 127 AD2d 121, 513 NYS2d 716; In re Victory Markets Inc., 202 B.R. 668, U.S. Bankruptcy Court N.D. NY 1996). The record is replete with evidence that removal of the systems in question (Glycol, air- conditioning, electronic wires, halon system, UPS) would cause material injury to the premises. Even if we were to agree with plaintiff that these are "trade fixtures" under New York law they lose their character because their removal would cause injury to the premises.

The terms of the lease are clear and precise, these alterations are of a permanent nature and property of the landlord. The terms of the lease are controlling with respect to fixtures, their ownership and entitlement to removal thereof.( City of New York v. G & C Amusements, Inc., 55 NY2d 353, 449 NYS2d 671, 434 NE2d 1038[1982]; Interlake Service Station, Inc., v. State of New York, 249 AD2d 275, 670 NYS2d 914[2nd. Dept. 1998]).

Plaintiff requests repair to the bathrooms, however §7.01(b) confers that responsibility to the landlord. [ See Burgess testimony "Responsibility for lavatory fixture maintenance was the landlord's. he would repair at his expense. Partition to toilets were tenant's responsibility".][ see Jesus Soto testimony " landlord repaired sink, toilet. I only touched the stalls".].

CONCLUSION

Landlord did not give tenant notice in accordance with §31.01of the lease that tenant remove the Glycol system, Halon System, UPS system, Electronic data processing wiring, supplemental air-conditioning system at the time of their installation. These systems are not "trade fixtures", their removal would cause material injury to the premises and possibly the building. Under New York law they are permanent installations that fall under §6.04 of the lease. Pursuant to this section they are property of the landlord and remain with the premises. However, tenant was [*13]provided notice of the double glazed windows and must remove the same.

Tenant had to remove movable property unless it gave landlord notice at least three(3) months prior to lease termination that it intended to leave them. There is no evidence that such notice was given. Under §6.05 tenant must remove this property or landlord may remove it at tenant's expense. Tenant has conceded the removal of some of these items. However, tenant must also remove the projection screen.

Under §7.01(b) landlord is responsible for repairs to electrical, plumbing, heating, ventilation and air-conditioning systems of the building as well as plumbing fixtures and plumbing hardware in the core toilets. Therefore, tenant shall not be responsible for repairs to toilets, plumbing fixtures or to convector covers in the bathrooms.

Accordingly, for the foregoing stated reasons it is the decision and judgment of this court that the First cause of action is dismissed, the Second cause of action is dismissed, on the Fourth cause of action Judgment is awarded in favor of plaintiff and against the defendant in the amount of $45,848.00[$37,848 to replace ,remove and repair items of ordinary wear and tear,$5000 to remove double glazed windows, $3000 to remove projection screens]. The clerk of the court shall enter judgment in favor of plaintiff and against the defendant in the amount of $45,848.00 with interest from September 30, 2002, plus costs and disbursements. The remaining causes of action have been settled as per stipulation on the record.

This constitutes the decision and judgment of this court.

Dated: June 22, 2006________________________

Manuel J. Mendez

Judge Civil Court [*14]