Clean Act Inc. v 4126 Realty Corp.

Clean Act Inc. v 4126 Realty Corp. 2018 NY Slip Op 06315 Decided on September 27, 2018 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on September 27, 2018
Renwick, J.P., Gische, Mazzarelli, Kern, Moulton, JJ.
7156 113457/11

[*1]Clean Act Inc., Plaintiff-Respondent,

v

4126 Realty Corp., Defendant-Appellant.

Apaamoore Agambila, New York, for appellant.

Law Office of Kramer & Shapiro, P.C., Kew Gardens (Michael A. Shapiro of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Gerald Lebovits, J.), entered December 9, 2016, after a nonjury trial, inter alia, declaring that plaintiff's leased premises at 4128 Broadway, New York, New York, includes a rectangular area of approximately 1,035 square feet and an adjacent L-shaped portion of approximately 165 square feet, and permanently enjoining and restraining defendant from taking action to terminate plaintiff's tenancy on the ground that the L-shaped portion is not part of the leased premises, unanimously affirmed, with costs.

Given the difference between the square footage of the demised premises stated in the lease and the square footage shown on a diagram attached to the lease, the trial court properly considered parol evidence in determining whether the demised premises includes an L-shaped area depicted in plaintiff's approved building plans (see Blue Jeans U.S.A. v Basciano , 286 AD2d 274, 276 [1st Dept 2001]; see e.g. Feld, Kaminetzky, & Cohen, P.C. v Lincoln Bldg. Assoc. , 2009 NY Slip Op 31729[U], *5 [Sup Ct, NY County 2009]).

Plaintiff's trial exhibits and witness testimony support a conclusion that the demised premises includes the subject L-shaped area, and the trial court was entitled to credit that testimony (see Ocap Acquisition Corp. v Paco Pharm. Servs. , 243 AD2d 327 [1st Dept 1997]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: SEPTEMBER 27, 2018

CLERK