Opinion
December 2, 1985
Appeal from the Supreme Court, Westchester County (Palella, J.).
Judgment modified, on the law, by deleting subdivision 3 of the second decretal paragraph thereof which declared that defendant had unreasonably withheld its consent to plaintiff's alterations. As so modified, judgment affirmed, without costs or disbursements.
Nonstructural alterations necessary to carry on a tenant's business may be made without the landlord's consent even where a lease provides that no alterations may be made without such consent (N. S. Decor Fixture Co. v V.J. Enters., 57 A.D.2d 890). Here the evidence clearly showed that the modifications necessary for plaintiff's installation of an automatic teller machine were not structural in nature.
Since the trial court properly determined that the defendant's consent was unnecessary, it should not have determined whether such consent was unreasonably withheld. Mangano, J.P., Brown, Rubin and Lawrence, JJ., concur.