143-145 Madison Avenue LLC v. Tranel, Inc.

74 A.D.3d 473, 902 N.Y.S.2d 532

Opinion

Order and judgment (one paper), Supreme Court, New York County (Joan A. Madden, J.), entered October 21, 2009, declar ing plaintiff tenants in violation of the subject lease, granting defendant landlord’s motion for summary judgment dismissing the second and third causes of action and vacating the Yellowstone injunction issued September 19, 2006, and denying plaintiffs’ cross motion for summary judgment, unanimously affirmed, with costs.

The motion court correctly rejected plaintiffs’ argument based on impossibility, since plaintiffs’ difficulties in obtaining sufficient water pressure to install a separate sprinkler system for the subject premises were foreseeable and could have been guarded against in the contract (see Kel Kim Corp. v Central Mkts., 70 NY2d 900, 902 [1987]). As plaintiffs, who had been in possession of the premises for years, were on notice, or at least inquiry notice, of the condition of the building and its plumbing before entering into the contract promising to install the sprinklers, it is their own negligence for which they seek relief (see P.K. Dev. v Elvem Dev. Corp., 226 AD2d 200, 201-202 [1996]). Moreover, the only evidence they submitted to support their contention that a separate sprinkler system was impossible was an affidavit by their plumber, who failed to refute any of the material assertions supporting defendant’s expert engineer’s opinion that a separate system could be installed. Concur—Gonzalez, P.J., Sweeny, Richter, Abdus-Salaam and Román, JJ.