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Nunz Realty, LLC v. Shay

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT


April 28, 2009

NUNZ REALTY, LLC, PETITIONER-LANDLORD-APPELLANT,
v.
BRIAN SHAY AND KARLA SHAY, RESPONDENTS-TENANTS-RESPONDENTS.

Landlord appeals from (1) an order of the Civil Court of the City of New York, New York County (Kevin C. McClanahan, J.), dated August 14, 2007, which denied its motion for summary judgment and granted tenants' motion to dismiss the petition in a nonpayment summary proceeding, and (2) an order (same court and Judge), dated September 19, 2007, which denied landlord's motion for reargument.

Per curiam.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Miscellaneous Reports.

PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ.

Order (Kevin C. McClanahan, J.), dated August 14, 2007, reversed, with $10 costs, petition reinstated and summary judgment granted to landlord in the principal amount of $31,875. Appeal from order (Kevin C. McClanahan, J.), dated September 19, 2007, dismissed, without costs, as an appeal from a non-appealable order.

The rent concession rider in the governing renewal lease form for the period of October 1, 2005 through September 30, 2007 granted tenants a temporary rent concession for the duration of the renewal lease term. The rider specifically stated that the then corporate owner had agreed to the temporary rent concession because tenants, shareholders of the corporation, were "owners" of the building premises. Significantly, the rider further provided that "the temporary rent concession does not apply to successors." Inasmuch as the building was sold in February 2006 to petitioner-landlord and the temporary rent concession, by its own terms, was not binding on successors, tenants were no longer entitled to the benefit of the rent concession upon the sale of the building to landlord.

The term "successors" is was not expressly or by implication limited only to tenants' successors, and such a limitation may not be read into the rider under the guise of contract interpretation (see Reiss v Financial Performance Corp., 97 NY2d 195, 199 [2001]). The parties' intent as to the applicability of the temporary rent concession having been clearly manifested in the controlling written agreement (see Colonnade Management, LLC. v Warner, 11 Misc 3d 52 [2006]), landlord was entitled to collect the legal regulated rent for the subject stabilized apartment upon purchasing the building.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision

20090428

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