Opinion
July 5, 1967
Judgment of the Supreme Court, Queens County, entered November 2, 1966, reversed, on the law and facts, with costs, and action remitted to the trial court for entry of judgment in accordance with the views expressed herein. This is an action to recover additional rent allegedly due under a written lease between plaintiff as lessor and defendant as lessee. The lease, which was executed in July, 1955, required the lessor to complete a building then under construction on the premises. This was done and the lessee took possession and the term of the lease commenced on October 1, 1955. The parties agreed that the lessor's responsibility for realty taxes chargeable against the premises was to be limited by the average tax payable over "the first three (3) years of the term of this lease." They further agreed, however, that the taxes were to be based on the "total assessment" of the premises, "to wit, the assessment fixed as against both land and building." In our opinion, this was recognition of the fact that the assessment for the tax year 1955/1956 (the tax year running from July 1, 1955 to June 30, 1956), which had been completed several months before construction began on the building, was not a true indication of the total value or total assessment of the premises, i.e., the vacant premises as improved by the building, and therefore was not to be used in computing the limitation on plaintiff's tax responsibility. The first year of "total assessment" was 1956/1957 and that year and the two succeeding years were to be the ones used (see, dissenting memorandum in H.L. Klion, Inc. v. Venimore Bldg. Corp., 21 A.D.2d 673, 674-675, upon which the Court of Appeals modified, 15 N.Y.2d 601). We have examined defendant's other contentions, particularly its objections to the validity of the "divided interest apportionment" relied upon by plaintiff, and find them to be without merit. Beldock, P.J., Brennan, Hopkins, Munder and Nolan, JJ., concur.