Opinion
December 14, 1978
Judgment, Supreme Court, New York County, entered September 30, 1977, fixing 1975 as the base date for the calculation of additional rent, unanimously modified, on the law, with $75 costs and disbursements of this appeal to plaintiff, to the extent of declaring 1969 as the base date and awarding judgment to plaintiff accordingly, and, except, as thus modified, affirmed. The sublease was specifically made subject to all the terms and conditions of the primary base, which was also incorporated by reference in the sublease. Its clear intention was to place the sublessee (defendant) in the shoes of the sublessor (plaintiff), by providing that the former assume the obligations of the latter to the landlord from the date the sublessee took occupancy. The base year in the primary lease for determining additional rent is 1969. The provisions of paragraphs 2, 6 and 10 of the sublease, upon which Special Term relied for its determination, merely limit defendant's obligation to pay "additional rent" on a pro rata basis for space occupied during the period of occupancy after November 1, 1975, the date defendant took possession. In no way do these provisions establish a base year different from that contained in the prime lease. Finally, there is no provision in the sublease for attorneys' fees. The provision in the primary lease allowing counsel fees is limited to the landlord's right against the lessee. Settle order.
Concur — Kupferman, J.P., Lupiano, Lane, Sandler and Sullivan, JJ.