Opinion
2007-805 N C.
Decided May 27, 2008.
Appeal from an order of the District Court of Nassau County, First District (Anthony William Paradiso, J.), entered March 15, 2007. The order, insofar as appealed from as limited by the brief, denied defendants' motion for summary judgment.
Order, insofar as appealed from, affirmed without costs.
PRESENT: RUDOLPH, P.J., TANENBAUM and MOLIA, JJ.
Plaintiff, a commercial tenant of defendants, brought the instant plenary action to recover the cost of replacing a heating system unit on the roof of the premises. Defendants sought summary judgment, asserting that under the terms of the parties' lease and its rider, the responsibility to replace the unit was plaintiff's. The court below denied summary judgment, concluding, inter alia, that the papers submitted raised issues of fact.
Paragraph 7 of the subject rider provides that the tenant agrees to maintain all utilities at the premises including the maintenance of all equipment to heat the entire premises. Paragraph 3 of the rider states that the tenant shall, at her own cost and expense, provide her own heat, electricity, air conditioning, cleaning and other services. On the other hand, paragraph 3 further states that the tenant shall not be responsible for any structural repairs, unless due to her negligence. In addition, plaintiff asserted, and defendants did not dispute, that the heating unit was in place at the time plaintiff entered into the lease. Under the circumstances, we are of the view that the court below correctly concluded that, upon the papers presented, defendant was not entitled to judgment as a matter of law.
We do not pass upon the request made by the nonappealing plaintiff that depositions be taken at this stage in the litigation.
Rudolph, P.J., Tanenbaum and Molia, JJ., concur.