Opinion
8173 Index 650440/17
01-22-2019
TELX–NEW YORK, LLC, Plaintiff–Respondent, v. 60 HUDSON OWNER, LLC, Defendant–Appellant.
Ingram Yuzek Gainen Carroll & Bertolotti, LLP, New York (Dean G. Yuzek of counsel), for appellant. Coblentz Patch Duffy & Bass LLP, San Francisco, CA (Richard R. Patch of the bar of the State of California, admitted pro hac vice, of counsel), for respondent.
Ingram Yuzek Gainen Carroll & Bertolotti, LLP, New York (Dean G. Yuzek of counsel), for appellant.
Coblentz Patch Duffy & Bass LLP, San Francisco, CA (Richard R. Patch of the bar of the State of California, admitted pro hac vice, of counsel), for respondent.
Sweeny, J.P., Richter, Tom, Kern, Singh, JJ.
Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered on or about May 29, 2018, which denied defendant's CPLR 3211(a) motion to dismiss the first cause of action, alleging breach of contract, and granted plaintiff's cross motion to consolidate defendant's civil court non-payment proceeding with this action, without the conditions sought by defendant,
unanimously modified, on the law, to grant defendant's motion, and otherwise affirmed, without costs.
In this action by a commercial tenant alleging electrical overcharges collected by defendant landlord, the clear and unambiguous terms of the lease provision governing the tenant's obligation for electrical costs was susceptible of only one meaning (see White v. Continental Cas. Co., 9 N.Y.3d 264,267–268, 848 N.Y.S.2d 603, 878 N.E.2d 1019 [2007] ), which duly authorized the disputed charges sought by the landlord (see generally Riverside S. Planning Corp. v. CRP/Extell Riverside, L.P., 13 N.Y.3d 398, 404–406, 892 N.Y.S.2d 303, 920 N.E.2d 359 [2009] ).
The court, in granting consolidation, properly balanced the equities and, in a provident exercise of discretion, declined to condition such order on the monetary security conditions sought by defendant.