| Juleah Co., L.P. v Greenpoint-Goldman Corp. |
| 2008 NY Slip Op 01863 [49 AD3d 282] |
| March 4, 2008 |
| Appellate Division, First Department |
| Juleah Co., L.P., Respondent, v Greenpoint-GoldmanCorp., Appellant. |
—[*1] Braverman & Associates, P.C., New York City (Andreas E. Theodosiou of counsel), forrespondent.
Judgment, Supreme Court, New York County (Walter B. Tolub, J.), entered December 26,2006, following a nonjury trial, awarding plaintiff damages in the principal sum of $450,793,unanimously affirmed, with costs.
Defendant landlord was unable to prove that plaintiff ground tenant had performedsubstantial alterations, additions or improvements to the premises without defendant's consent,which would have been in violation of article 10 of the lease. Unrefuted testimony establishedthat the lobby renovation project did not involve any structural work (see Frequency Elecs. vWe're Assoc. Co., 120 AD2d 489 [1986]), and consisted of painting, replacing wallpaper andcarpeting, relocating the door to the package room, replacing the panel on the existing intercomsystem, and installation of a fan coil unit that utilized the building's preexisting chiller.
Defendant breached the lease by failing to issue an estoppel certificate in connection withplaintiff's application to refinance the underlying mortgage. Under article 34 of the lease, and the1995 so-ordered stipulation that reaffirmed same, plaintiff was absolutely entitled to the issuanceof such a certificate. Article 34 unambiguously provides that within 20 days of a request by thetenant, the landlord must furnish an estoppel certificate. Defendant argues that the proposedcertificate sought a more extensive certification than required under the lease. Even if this werethe case, defendant was still obliged to issue a certificate as to those items set forth in the lease.Defendant could have marked up the certificate or supplied its own form of certification, assuggested in plaintiff's attorney's letter of September 29, 2003. The fact that plaintiff may haverequested a certification of items not specifically identified in the lease did not relieve defendantof its absolute obligation to issue an estoppel certificate within 20 days of the request.
Defendant also argues that the request for an estoppel certificate was not sent by registeredmail, as required in article 24 of the lease. However, defendant's receipt of the request and itsfailure to object promptly constitute a waiver of that defect; service was not invalidated under thecircumstances (see Rower v West Chamson Corp., 210 AD2d 7 [1994]).
As a consequence of defendant's wrongful withholding of the certificate, plaintiff is entitledto damages that were the natural and probable consequence of the breach. The trial court [*2]appropriately awarded damages over a 10-year periodcorresponding to the period of the refinanced loan. For the first three years of this period, thecourt awarded the difference between plaintiff's existing mortgage rate (7.54%) and the rateavailable on the refinanced loan (5.31%), for a total of $236,592 in increased mortgagepayments. Since plaintiff's original loan was fully payable on January 1, 2007, the court thenawarded the difference between the rate available at the time of trial in August 2006 (6.12%) andthe rate available on the refinanced loan (5.31%), representing damages of $194,201 over theseven-year period. Plaintiff was further damaged in the amount of $20,000, representing itsnonrefundable application fee. Concur—Nardelli, J.P., Williams, Sweeny and Catterson,JJ.