Rudd v. 176 West 87th Street Owners Corp.

283 A.D.2d 202, 724 N.Y.S.2d 299, 2001 N.Y. App. Div. LEXIS 4788

Opinion

—Judgment, Supreme Court, New York County (Franklin Weissberg, J.), entered September 13, 2000, awarding plaintiff tenants a credit against the rent they owe defendant landlord, and bringing up for review an order which, upon conversion of the landlord’s motion to dismiss the complaint to a motion for summary judgment, declared that under the parties’ commercial lease calling for the tenants’ payment of a specified share of any real estate tax escalations against the building, the tenants are entitled to a refund of rent representing their proportionate share of a real estate tax refund that the landlord received in a tax certiorari proceeding, unanimously affirmed, without costs.

We reject the landlord’s argument that the tenants are not entitled to the refund they seek simply because the lease does not expressly provide therefor. To hold otherwise would allow the landlord to realize a profit from the tenants’ compliance with a clause that was not intended to provide the landlord with a windfall (cf., Fairfax Co. v Whelan Drug Co., 105 AD2d 647; S.B.S. Assocs. v Weissman-Heller, Inc., 190 AD2d 529). Concur — Nardelli, J. P., Williams, Tom, Lerner and Rubin, JJ.