Justice Louis York
Owner 16 Madison Square Housing moved to dismiss the instant complaint contending a failure to state a cause of action. Plaintiff tenants rented out the ground floor and a portion of the basement from 16 Madison and had restaurant Pope 23rd Inc. as a subtenant. Pope installed a vent and flue on the roof. 16 Madison notified plaintiffs it illegally installed the flue, which had fallen and destroyed a chimney it was attached to, demanding plaintiffs repair the roof. Plaintiffs argued defendants unlawfully demanded repairs of the roof before permitting plaintiffs to repair the flue and vent. They also claimed 16 Madison failed to make a claim for damages with its insurer. Plaintiffs argued its new subtenant refused to pay rent as it was unable to properly operate its cooking facilities without a flue and vent, resulting in damages. The court found the lease provided tenants may install ducts or flues at their own cost, but also repair them as well as any damage caused by an installation. Also, the obligation to look to an insurer did not extend to allegedly negligent acts of a tenant or subtenant. As plaintiff failed to state a cause of action for breach of contract, dismissal was granted.
