Summary
rejecting landlord's attempt to recover lost rental income on the theory that tenant held over its tenancy
Summary of this case from Bldg. Serv. Local 32 B-J Pension Fund v. 101 Ltd.Opinion
November 10, 1998
Appeal from the Supreme Court, New York County (Charles Ramos, J.).
The motion court properly determined that Action B plaintiff is not entitled to lost rental income and financing costs associated with extensive restoration work that defendant tenant Chemical failed to perform in accordance with its supplemental covenant to surrender the leased premises in the stipulated condition, since the parties' agreement did not provide for the award of such consequential damages but only for recovery of the reasonable cost of restoring the premises to the covenanted condition ( see, Solow Mgt. Corp. v. Hochman, 191 A.D.2d 250, lv dismissed 82 N.Y.2d 802; Farrell Lines v. City of New York, 30 N.Y.2d 76, 84; Tobin v. Union News Co., 18 A.D.2d 243, affd 13 N.Y.2d 1155; Appleton v. Marx, 191 N.Y. 81; Mudge v. West End Brewing Co., 145 App. Div. 28, 31, affd 207 N.Y. 696). Where a party fails to insert a provision permitting consequential damages into a lease agreement, the court will not supply it ( see, 1009 Second Ave. Assocs. v. New York City OTB, 248 A.D.2d 106, 108). Nor can plaintiff recover lost rental income on the theory that defendant held over its tenancy. It is undisputed that defendant did in fact vacate the premises, and although in so doing it failed to remove structural alterations and major installations, that failure did not constitute a constructive holdover ( see, Arnot Realty Corp. v. New York Tel. Co., 245 A.D.2d 780; Canfield v. Harris Co., 222 App. Div. 326, affd 248 N.Y. 541).
Plaintiff's third cause of action alleging an entitlement to special damages by reason of defendant's creation of a public nuisance was properly dismissed, since the alleged damages are merely for economic loss occasioned by breach of a contract to remedy asbestos contamination caused by a defective hybrid fireproofing assembly, and not for personal injuries or property damage independent of defendant's failure to fulfill said contractual obligations ( see, New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 316; Sommer v. Federal Signal Corp., 79 N.Y.2d 540, 551; Rockefeller Univ. v. Tishman Constr. Corp., 232 A.D.2d 155, lv denied 89 N.Y.2d 811). "[T]he mere potential for serious physical injury or property damage is not enough to create a duty independent of the contract thereby authorizing recovery in tort" ( Rockefeller Univ. v. Tishman Constr. Corp., supra, at 155). We have considered plaintiff's other arguments and find them to be unpersuasive.
Concur — Lerner, P. J., Sullivan, Milonas and Rubin, JJ.