The opinion of the court was delivered by: Sweet, District Judge.
Defendant Thom Rock Realty Company ("Thom Rock") has moved
pursuant to Rule 56, Fed.R.Civ.P., for summary judgment
dismissing the complaint of plaintiff Storwal International, Inc.
("Storwal") in this diversity action for damages arising from an
alleged breach of contract. For the reasons set forth below, the
motion is denied.
Storwal is a Canadian corporation engaged in the manufacture
and wholesale of steel file cabinetry and pedestals for
professional commercial offices (the "office furniture
business"). Its principal place of business is in Pembroke,
Thom Rock is a New York limited partnership having its
principal place of business in New York, New York. Thom Rock
develops and owns real estate.
On October 26, 1990, Storwal filed this action seeking a
declaration that Thom Rock breached the lease between the parties
and damages for breach of contract.
Thom Rock did not answer the first amended complaint. On
January 21, 1991, Thom Rock filed the instant summary judgment
motion. Oral argument was heard on March 26, 1991, and the motion
was considered fully submitted as of that date.
By Agreement of Lease, dated April 23, 1986 (the "Lease"),
Storwal and Thom Rock entered into a lease for the rental of
premises (the "Premises") at 30-30 Thomson place, Long Island
City, New York (the "Building").
The term of the lease was for a ten-year period, commencing on
May 1, 1986 and expiring on April 30, 1986.
Paragraphs 2(A), 2(B), 20 and 46(C) of the Lease provide as
2(A) — Tenant shall use and occupy the Premises for
the showroom display and sale to the trade, at
wholesale only, of the following items and for no
other use or purpose: Furniture Systems.
2(B) — Landlord covenants that the Project shall be
constructed as a first class commercial building
intended to be used for ...