Opinion
570055/04.
Decided November 4, 2004.
Landlord appeals from an order of the Civil Court, New York County, entered December 29, 2003 (Paul G. Feinman, J.) which granted tenant's motion for summary judgment dismissing the petition in a commercial nonpayment summary proceeding.
Order entered December 29, 2003 (Paul G. Feinman, J.) affirmed, with $10 costs.
PRESENT: HON. WILLIAM P. McCOOE, J.P., HON. WILLIAM J. DAVIS, HON. MARTIN SCHOENFELD, Justices.
Civil Court correctly determined that tenant is not obligated to make the rent escalation payments herein sought by landlord and properly granted summary judgment to tenant dismissing the commercial nonpayment petition. The tax escalation provision drafted by landlord (paragraph 15) does not evince an unequivocal intent that tenant's additional rent obligation for real estate taxes is to include real estate taxes that are not actually paid by landlord ( Wellington Tower Assocs. v. New York First Ave. CVS, 3 AD3d 460). Such an intent is necessary since, as the motion court recognized, landlord would reap a windfall were it permitted to recover additional rent for taxes it does not actually pay ( id.). The proportionate increase in the tax assessment claimed by landlord to have resulted from its conversion of a portion of the building premises to condominium ownership, a transfer which undisputedly led to a decrease in the landlord's actual tax costs, cannot serve to "obligat[e] [tenant] to pay increased costs which are merely theoretical." ( 1100 Ave. of Ams. Assoc. v. Bryant Imports, 161 Misc 2d 582, 586, affd 234 AD2d 101.)
This constitutes the decision and order of the court.