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Washington Refrigeration Corp. v. Benhermax Corp.

Supreme Court of New York, Appellate Division

May 10, 1955

Washington Refrigeration Corp.
v.
Benhermax Corp.

Page 733

APPEAL, by permission of the Appellate Division of the Supreme Court in the first judicial department, from a determination of the Appellate Term of the Supreme Court in the same department, entered November 10, 1954, in New York County, which affirmed a final order of the Municipal Court of the City of New York, Borough of Manhattan (BISSELL, J.), in favor of the landlord, respondent herein.

COUNSEL

Benjamin Heller of counsel (S. Stanley Kreutzer with him on the brief; Kreutzer Heller & Selman, attorneys), for appellant.

George Trosk of counsel (Jesse Climenko and Martin I. Shelton with him on the brief; Edward Raff, attorney), for respondent.

CALLAHAN, J. P.

This appeal presents certain questions with respect to the construction and application of subdivision (k) of section 8 of the Business Rent Law (L. 1945, ch. 314, § 8, subd. [k], added by L. 1949, ch. 535 and last amd. by L. 1953, ch. 452). The principal point is whether a proposed lease, which the tenant is asked to match, may be one for only part of a single integrated store occupied by the tenant under a single lease.

The statute (Business Rent Law, § 8) reads, in pertinent part, as follows:

'§ 8. So long as the tenant continues to pay the rent to which the landlord is entitled, under the provisions of this act, no tenant shall be removed from any business space, by action or proceeding to evict or to recover possession, * * * notwithstanding that such tenant has no lease or that his lease or other rental agreement has expired or otherwise terminated, * * * unless: * * *

Page 734

'(k) the landlord, subject to the following conditions, receives and accepts a bona fide offer to enter into a lease with a prospective tenant for any store having an emergency rent of at least three thousand dollars per annum, occupied by one tenant, which lease provides for a rental of three thousand six hundred dollars per annum or more, for a term of not less than ten years, non-cancellable except for the violation of any term or obligation of such lease, and the landlord offers to execute a lease containing the same terms and conditions with the tenant in possession and delivers to the tenant in possession a copy of such lease with the prospective tenant, and such tenant fails, neglects or refuses to execute such a lease within thirty days after tender thereof to such tenant'.

Prior to March, 1941, the tenant leased, under separate instruments, several portions of a building from the owner, New York State Realty and Terminal Company. Under date of March 1, 1941, it executed a lease to said owner for five years at a single rental of $6,900 per annum for premises described in the lease as follows:

'The store and sales office on the ground floor of said building, designated as Cooler #3 and shown outlined in green on the attached plan entitled 'Ground Floor 437-51 West 13th Street, New York City,' dated March 26, 1941.

'The spaces on the second floor of said building shown outlined in green and designated as Cooler #4 and Storage and office space designated as #8 on the attached plan entitled 'Second Floor 437-51 West 13th Street, New York City,' dated March 26, 1941.

'TOGETHER with the use of an electrically operated escalator or conveyor between the ground floor and the ...


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