Opinion
No. 3790.
December 7, 2010.
Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered May 11, 2010, which, in an action by a commercial tenant against its landlord for damages allegedly caused by defendant's termination of the lease after a fire in the leased premises, granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.
Leonard Zack Associates, New York (Leonard Zack of counsel), for appellants.
Michael B. Kramer Associates, New York (R. Jay Ginsberg of counsel), for respondent.
Before: Mazzarelli, J.P., Acosta, Richter, Abdus-Salaam and Román, JJ.
Three possible bases for terminating the subject lease as a result of fire are indicated in the lease: (1) the demised premises are rendered "wholly unusable"; (2) whether or not the demised premises are damaged in whole or in part, the building is "so damaged" that landlord decides to demolish it; and (3) the demised premises are "totally damaged." It would not avail tenant even if, as it argues, basis (3), which is set forth in a rider, supersedes bases (1) and (2), since the record establishes that the fire damage was so extensive as to satisfy all three bases ( see Mawardi v Purple Potato, 187 AD2d 569). As a result of the fire, most of the roof caved in, causing the sky to be clearly visible from inside the premises; a structural wall was listing toward the adjacent property and in danger of collapse; the Fire Department ordered the building vacated as imminently perilous to life; the air conditioner on the roof was totally destroyed; the electrical systems were beyond repair; the basement was flooded and damaged by smoke and soot; the restaurant's windows, kitchen, ceiling, and floor were completely destroyed; and most of plaintiffs personal property and fixtures were found by its insurance carrier to be a total loss.
[Prior Case History: 2010 NY Slip Op 31132(U).]