Telx-New York, LLC v 60 Hudson Owner, LLC

Telx-New York, LLC v 60 Hudson Owner, LLC 2019 NY Slip Op 00395 Decided on January 22, 2019 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 January 22, 2019
Sweeny, J.P., Richter, Tom, Kern, Singh, JJ.
8173 650440/17

[*1]Telx-New York, LLC, Plaintiff-Respondent,

v

60 Hudson Owner, LLC, Defendant-Appellant.

Ingram Yuzek Gainen Carroll & Bertolotti, LLP, New York (Dean G. Yuzek of counsel), for appellant.

Coblentz Patch Duffy & Bass LLP, San Francisco, CA (Richard R. Patch of the bar of the State of California, admitted pro hac vice, of counsel), for respondent.

Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered on or about May 29, 2018, which denied defendant's CPLR 3211(a) motion to dismiss the first cause of action, alleging breach of contract, and granted plaintiff's cross motion to consolidate defendant's civil court non-payment proceeding with this action, without the conditions sought by defendant,

unanimously modified, on the law, to grant defendant's motion, and otherwise affirmed, without costs.

In this action by a commercial tenant alleging electrical overcharges collected by defendant landlord, the clear and unambiguous terms of the lease provision governing the tenant's obligation for electrical costs was susceptible of only one meaning (see White v Continental Cas. Co., 9 NY3d 264,267-268 [2007]), which duly authorized the disputed charges sought by the landlord (see generally Riverside S. Planning Corp. v CRP/Extell Riverside, L.P., 13 NY3d 398, 404-406 [2009]).

The court, in granting consolidation, properly balanced the equities and, in a provident exercise of discretion, declined to condition such order on the monetary security conditions sought by defendant.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 22, 2019

CLERK