644 BRDY REALTY INC., plf-ap, v. BLEECKER TOWER TENANTS CORP., def-res

3737. 644 BRDY REALTY INC., plf-ap, v. BLEECKER TOWER TENANTS CORP., def-res — Fried, Frank, Harris, Shriver & Jacobson, LLP, New York (Janice Mac Avoy of counsel), for ap — Kagan Lubic Lepper Finkelstein & Gold, LLP, New York (Jesse P. Schwartz of counsel), for res — Order and judgment (one paper), Supreme Court, New York County (Debra A. James, J.), entered October 2, 2015, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for partial summary judgment on the first cause of action, and granted defendant's cross motion for summary judgment dismissing the fourth cause of action for breach of contract and the fifth cause of action for declaratory relief, unanimously modified, on the law, to the extent of declaring that plaintiff's obligation to pay rent is not suspended on the ground that defendant failed to perform its obligations under the lease including the making of structural repairs, and as so modified, affirmed, without costs.

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3737. 644 BRDY REALTY INC., plf-ap, v. BLEECKER TOWER TENANTS CORP., def-res — Fried, Frank, Harris, Shriver & Jacobson, LLP, New York (Janice Mac Avoy of counsel), for ap — Kagan Lubic Lepper Finkelstein & Gold, LLP, New York (Jesse P. Schwartz of counsel), for res — Order and judgment (one paper), Supreme Court, New York County (Debra A. James, J.), entered October 2, 2015, which, to the extent appealed from as limited by the briefs, denied plaintiff’s motion for partial summary judgment on the first cause of action, and granted defendant’s cross motion for summary judgment dismissing the fourth cause of action for breach of contract and the fifth cause of action for declaratory relief, unanimously modified, on the law, to the extent of declaring that plaintiff’s obligation to pay rent is not suspended on the ground that defendant failed to perform its obligations under the lease including the making of structural repairs, and as so modified, affirmed, without costs.

The lease says, “‘Aggregate Maintenance’ shall mean the sum obtained by adding the maintenance (rent) paid by all the ‘tenant-stockholders’… in the cooperative housing corporation which owns the Property, pursuant to the regular assessment,… but excluding any special, one-time or non-recurring assessments not related to the normal and recurring maintenance of the Building.” It does not say, “excluding capital expenditures.” Thus, the court properly rejected plaintiff’s interpretation of Aggregate Maintenance (see Vermont Teddy Bear Co. v. 538 Madison Realty Co., 1 NY3d 470, 475 [2004]).

644 BRDY REALTY INC., plf-ap, v. BLEECKER TOWER TENANTS CORP., def-res

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