257 Park Avenue Associates v. Music Sales Corp.

24 A.D.3d 371, 806 N.Y.S.2d 535

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 29, 2005
• Status: Published

Opinions

Judgment, Supreme Court, New York County (Karla Moskowitz, J), entered February 24, 2005, after a nonjury trial, which held that the parties’ renewal lease included electrical usage as part of the monthly and annual base rent, declared that plaintiff was not entitled to reformation of the subject renewal lease to provide that electrical usage is a separate charge payable in addition to base rent, and dismissed the complaint, reversed, on the law, with costs, the judgment vacated, the complaint reinstated, the lease adjudged to provide that electrical usage is a separate charge payable in addition to the monthly and annual base rent, and plaintiff declared to be entitled to reformation of the lease accordingly.

As in Nash v Kornblum (12 NY2d 42 [1962]), this matter involves a mistake on the part of plaintiff in reducing to writing the parties’ renewal lease agreement, “which plaintiff did not discover before submission to the defendant, and the latter, with knowledge of the mistake, trying to take advantage of the error” (12 NY2d at 47). Indeed, defendant concedes that its real estate broker, who was involved with the first lease and preliminary negotiation of the renewal lease, repeatedly made it aware, early on, of the mistake as to the electrical usage charge. Specifically, the record shows that when the broker told Castaldo, defendant’s executive in charge of real estate matters, that the draft renewal lease contained a mistake insofar as it indicated that electrical charges would be included in the lease rent, Castaldo directed the broker to “leave it alone.” A few days later, the broker spoke to Castaldo again and reiterated his belief that there was a mistake. Castaldo replied, “so be it,” and again told the broker to leave it alone. Castaldo reported both conversations to defendant’s president. Consequently, defendant removed the broker from the negotiations. Under these circumstances, the scrivener’s error is subject to correction via the equitable remedy of reformation. Concur—Sullivan, J.P., Williams, Gonzalez and McGuire, JJ.