Summary
In Meyers Parking System, Inc. v. 475 Park Ave. So. Co., 186 A.D.2d 92, (1st Dep't 1992), the department upheld a tax escalation clause where it found the language of the lease to be clear and unambiguous as to tenant's obligations.
Summary of this case from In re MacOpinion
September 29, 1992
Appeal from the Supreme Court, New York County (Burton S. Sherman, J.).
The language of the lease clearly and unambiguously specified that plaintiff was to pay "a sum equal to 15%" of any real estate tax increase as additional rent. Such escalation clauses are common in commercial leases and have been approved and enforced according to their terms (see, Backer Mgt. Corp. v Acme Quilting Co., 46 N.Y.2d 211). There being no showing of unjust enrichment, unconscionability, mutual mistake or violation of public policy, the court properly granted summary judgment, noting that the lease had been negotiated at arm's length and abided by for over a period of 20 years. The parties "intended that which they wrote" (Penney Co. v 1700 Broadway Co., 104 Misc.2d 787, 792).
There was no showing that the action was frivolous, without merit, or undertaken primarily to delay or prolong the litigation or harass another such as would warrant the imposition of sanctions.
Concur — Carro, J.P., Kupferman, Ross and Asch, JJ.