Empire State Building Associates v. Trump Empire State Partners

273 A.D.2d 35, 710 N.Y.S.2d 819, 2000 N.Y. App. Div. LEXIS 6318

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 6, 2000
• Status: Published

Opinion

Order and judgment (one paper), Supreme Court, New York County (Edward Lehner, J.), entered May 26, 1999, which, insofar as appealed from, granted plaintiffs summary judgment in Action No. 2 herein, declaring that plaintiff Associates is entitled to deal with the Buildings Department as “owner” of the subject building with respect to violations, permits and other applications before that agency, except in situations where a permit or license is sought with respect to a structural repair to cost in excess of $200,000, and judgment, same court and Justice, entered January 12, 2000, which granted plaintiffs’ motion to renew a prior motion for summary judgment, and on renewal, granted the motion, declaring that a notice of default dated April 26, 1999 does not set forth a ground to terminate the subject leasehold, unanimously affirmed, with costs.

The motion court properly determined that defendants did not demonstrate any breach of the lease so material and substantial as to warrant forfeiture (see, Brainerd Mfg. Co. v Dewey Garden Lanes, 78 AD2d 365, 367, appeal dismissed 53 NY2d 701). The question of plaintiff lessee’s right under the master lease to act as “owner” solely for the limited purpose indicated was properly resolved, since there was no question of fact as to the parties’ practical construction of their agreement (cf., Deborah Intl. Beauty v Quality King Distribs., 175 AD2d 791). Defendants are not entitled to attorney’s fees (cf., Dove Hunters Pub v Posner, 211 AD2d 494). We have considered defendants’ remaining arguments and find them unavailing. Concur — Rosenberger, J. P., Nardelli, Mazzarelli, Lerner and Friedman, JJ.