S.B.S. Associates v. Weissman-Heller, Inc.

190 A.D.2d 529, 593 N.Y.S.2d 28, 1993 N.Y. App. Div. LEXIS 865

Opinion

— Order, Supreme Court, New York County (David B. Saxe, J.), entered June 2, 1992, which, inter alia, denied plaintiff’s motion for summary judgment, and declared that defendant is not obligated to make rent escalation payments pursuant to the terms of the lease between plaintiff as landlord and defendant as tenant unless plaintiff actually makes rent escalation payments to the owner of the building, unanimously affirmed, without costs.

The IAS Court correctly determined that our decision in Fairfax Co. v Whelan Drug Co. (105 AD2d 647), established that a tax escalator clause is designed to afford relief to a landlord where an increased assessment required actual payment. To hold otherwise would allow the plaintiff-landlord to reap a windfall not envisioned by the parties’ agreement. Concur — Carro, J. P., Rosenberger, Ellerin, Kupferman and Rubin, JJ.