L.P.S. Enterprises of New York, Ltd. v. Senpike Mall Co.

266 A.D.2d 871, 698 N.Y.S.2d 202, 1999 N.Y. App. Div. LEXIS 11771

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 12, 1999
• Status: Published

Opinion

—Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted that part of defendant’s cross motion for partial summary judgment seeking dismissal of those parts of the fourth and fifth causes of action that seek a refund for alleged common area cost overcharges that accrued prior to January 1,1996. In signing the lease, plaintiff expressly waived the right to audit common area charges for each year after the passage of two lease years (see, Hadden v Consolidated Edison Co., 45 NY2d 466, 469), and “[ajbsent some violation of law or transgression of a strong public policy,” there is no basis for this Court to revise the bargained-for agreement between the parties (Rowe v Great Atl. & Pac. Tea Co., 46 NY2d 62, 67-68; see, Niagara County Sewer Dist. No. 1 v Town of Niagara, 214 AD2d 978). We agree with the court that defendant’s determination of the charges is now “final and conclusive”; the fact that plaintiff seeks to audit those charges in the context of this lawsuit is of no moment. The court did not abuse its discretion in granting that part of defendant’s cross motion seeking a protective order (see, Moore v Gemerek, 222 AD2d 1064). We have examined the remaining contentions of plaintiff and conclude that they are lacking in merit. (Appeal from Order of Supreme Court, Onondaga County, Murphy, J. — Summary Judgment.) Present — Denman, P. J., Green, Pine, Scudder and Callahan, JJ.