600 Partners Co. v. French Fashion Academy, Inc.

105 A.D.2d 598, 481 N.Y.S.2d 77, 1984 N.Y. App. Div. LEXIS 20703

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 1, 1984
• Status: Published

Opinion

Order of the Appellate Term, First Department, entered April 18,1984, which modified a judgment of the Civil Court, New York County (Ramos-Lopez, J.), entered on March 3,1982, to the extent that it granted possession of the premises to the landlord 600 Partners Co. on its second cause of action and remanded to the Civil Court, inter alia, for a hearing to determine use and occupancy and attorney’s fees, is modified, on the law and facts solely to the extent of vacating that portion of the judgment which relates to electrical energy and remanding for a hearing as to the additional cost of electrical energy consumed in the demised premises, and otherwise affirmed, without costs.

Article 16.03 of the lease provides that the tenant shall pay for any increase or decrease in the cost of electric energy to the demised premises. The demised premises consists of space on the twenty-second floor of the building leased to defendant. However, at the trial, the proof offered by landlord ignored the actual use of electrical energy by the tenant but reflected the percentage increase that Con Edison had billed for the whole building. The tenant was charged an additional sum of $20,939.74 for his pro rata share of the increased cost of the electrical energy used in the entire building. Thus defendant tenant was, in effect, penalized in the computation for the installation and increased use of electrical energy by other tenants in the building. Upon the rehearing, there should be a determination or estimation of the amount of electricity used in the demised premises only and then a calculation of what the increase in the cost of such energy has been since the base year. Concur — Kupferman, J. P., Ross, Asch and Bloom, JJ.