| Kaygreen Realty Co. v IG Second Generation Partners, L.P. |
| 2009 NY Slip Op 09433 [68 AD3d 933] |
| December 15, 2009 |
| Appellate Division, Second Department |
| Kaygreen Realty Co., Respondent, v IG SecondGeneration Partners, L.P., et al., Appellants. |
—[*1] Duane Morris, LLP, New York, N.Y. (Michael L. Chartan, Brian J. Markowitz, and JessicaSingh of counsel), for respondent.
In an action for a judgment declaring, inter alia, that the plaintiff is not in default of itsobligations under the subject lease, the defendants appeal from an order and judgment (onepaper) of the Supreme Court, Queens County (Kitzes, J.), dated July 31, 2008, which, after anonjury trial, and upon a decision of the same court dated July 15, 2008, declared that theplaintiff was not in default of its obligations under the subject lease and granted the plaintiff'smotion to permanently enjoin the defendants from taking any action to terminate the subjectlease on the basis of the purported defaults set forth in a notice and demand dated March 13,2003, and a notice of default dated April 4, 2003.
Ordered that the order and judgment is affirmed, with costs.
The plaintiff Kaygreen Realty Co. (hereinafter Kaygreen), and the defendants IG SecondGeneration Partners, L.P., and I BLDG Co., Inc., are the successors-in-interest to the tenant andlandlord, respectively, under a commercial lease entered into between R.H. Macy & Co., Inc., aslandlord, and Jamkay Realty Corp., as tenant, as amended by a supplemental indenture datedJanuary 1, 1979 (hereinafter the lease).
By notice and demand dated March 13, 2003, and notice of default dated April 4, 2003, thedefendants advised Kaygreen that it was in default of its insurance obligations under article X ofthe lease and its maintenance obligations under articles III and VIII of the lease, by failing tocure or remedy certain violations and conditions set forth on an annexed schedule A.Additionally, the defendants advised Kaygreen that it violated articles VIII and IX, prohibitingacts of waste, by dismantling an elevator in the subject property.
As a result, Kaygreen commenced this action seeking a judgment declaring that it was not indefault of the lease as claimed in the notice and demand and the notice of default. On the sameday, Kaygreen also moved for a Yellowstone injunction (see First Natl. Stores vYellowstone Shopping Ctr., 21 NY2d 630 [1968]) to stay the cure period and to permanentlyenjoin the defendants from terminating the lease. Kaygreen was granted a Yellowstoneinjunction and the matter was scheduled for trial. After a nonjury trial, the Supreme Court foundthat Kaygreen was not in default of the lease as claimed by the defendants in the notice anddemand, and the notice of default.
In reviewing a determination made after a nonjury trial, the power of this Court is as broadas that of the trial court, and the Appellate Division may render the judgment it finds warrantedby the facts, bearing in mind that in a close case, the trial judge had the advantage of seeing thewitnesses (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60NY2d 492, 499 [1983]). Here, the Supreme [*2]Court'sdetermination that Kaygreen was not in default of its insurance obligations under article X andits maintenance obligations under articles III and VIII of the lease is warranted by the facts.
The defendants' contention that the Supreme Court erred in considering certain testimonyproffered by Kaygreen's manager of the subject property regarding Kaygreen's maintenance ofinsurance on the ground that it violated the best evidence rule is unpreserved for appellate reviewin light of the defendants' failure to make a timely objection to his testimony on this basis(see CPLR 4017; Zelaya v New York N.Y. Auto Body, Inc., 41 AD3d 594[2007]; Austin v Carstens-Elliot, 39 AD3d 443 [2007]). Moreover, the Supreme Courtprovidently exercised its discretion by excluding evidence regarding other alleged maintenanceissues and/or violations not specifically set forth on schedule A annexed to the notice of default,as irrelevant or outside of the scope of the default notice (see Pourooshasb vPourooshasb, 4 AD3d 404 [2004]; cf. Price v New York City Hous. Auth., 92 NY2d553, 560 [1998]).
The Supreme Court's determination that Kaygreen's dismantling of one of the elevators didnot constitute waste is also warranted by the facts. In this regard, the evidence demonstrated thatthe dismantling of the elevator was permitted under article IX of the lease, which providesKaygreen with broad authority to make changes and alterations, structural or otherwise, to thesubject property. Additionally, this alteration, which was done in accordance with applicablecode and was nonpermanent, as the elevator could be restored to working order, did not alter avital or substantial portion of the subject property (see Rumiche Corp. v Eisenreich, 40NY2d 174, 179-180 [1976]; Med Mac Realty Co. v Lerner, 154 AD2d 656, 660 [1989]).Eng, J.P., Belen, Austin and Roman, JJ., concur.