24 Hour Service Garage, Inc. v. Marko Motor Service, Inc.

278 A.D. 969, 105 N.Y.S.2d 680

Opinion

In a proceeding by the tenant of a storage and repair garage to determine and fix the emergency rent under the Commercial Rent Law, order denying the application and order granting landlord’s motion to dismiss under subdivision 2 of rule 107 of the Rules of "Civil Practice reversed on the law, with $10 costs and disbursements, motion to dismiss under rule 107 denied,' with $10 costs, and the matter is remitted to Special Term for further proceedings. Upon the facts disclosed by the submitted papers, we are of the opinion that the court had. jurisdiction to hear and determine the application to fix the emergency rent, "and that the inclusion of provisions in the garage lease permitting the tenant tq use the equipment thereof and transfering to it the right to continue the business theretofore conducted therein and tq receive storage charges from the customers storing automobiles therein at the time of the commencement of the term of the lease are matters to be considered in the determination of reasonable rent. (Matter of Zellner [Brooklyn Trust Co.] 299 N. Y. 243, 246.) As the premises were used and occupied as a garage on March 1, 1943, the 32d provision of the lease asserted by respondent tq be an agreement of reasonable rent may not be so considered under subdivision (e) of section 2 of chapter 3 of the Laws of 1945, as amended. (Joanette Juniors v. Princeway Realty Gorp., 272 App. Div. 420.) Present — Nolan, P. J., Carswell, Johnston, Sneed and Wenzel, JJ., concur.