CHEMICAL BANK v. STAHL (1998)

Orders, Supreme Court, New York County (Charles Ramos, J.), entered September 15, 1997 and May 20, 1998, respectively, as to Action B, insofar as they granted defendant Chemical Bank's motion for partial summary judgment dismissing plaintiffs' first cause of action for consequential damages, and granted defendant Chemical Bank's cross motion for summary judgment dismissing plaintiffs' third cause of action for public nuisance, unanimously affirmed, with costs.

 The motion court properly determined that Action B plaintiffs are not entitled to lost rental income and financing costs associated with extensive restoration work that defendant tenant Chemical failed to perform in accordance with its supplemental covenant to surrender the leased premises in the stipulated condition, since the parties' agreement did not provide for the award of such consequential damages but only for recovery of the reasonable cost of restoring the premises to the covenanted condition (see, Solow Mgt. Corp. v. Hochman, 191 A.D.2d 250, 594 N.Y.S.2d 751, lv. dismissed 82 N.Y.2d 802, 604 N.Y.S.2d 559, 624 N.E.2d 697;  Farrell Lines, Inc. v. City of New York, 30 N.Y.2d 76, 84, 330 N.Y.S.2d 358, 281 N.E.2d 162;  Tobin v. Union News Co., 18 A.D.2d 243, 239 N.Y.S.2d 22, affd. 13 N.Y.2d 1155, 247 N.Y.S.2d 385, 196 N.E.2d 735;  Appleton v. Marx, 191 N.Y. 81, 83 N.E. 563;  Mudge v. West End Brewing Co., 145 App.Div. 28, 31, 130 N.Y.S. 350, affd. 207 N.Y. 696, 101 N.E. 1112).   Where a party fails to insert a provision permitting consequential damages into a lease agreement, the court will not supply it (see, 1009 Second Ave. Assocs. v. New York City Off-Track Betting Corp., 248 A.D.2d 106, 108, 669 N.Y.S.2d 540, 542).   Nor can plaintiffs recover lost rental income on the theory that defendant held over its tenancy.   It is undisputed that defendant did in fact vacate the premises, and although in so doing it failed to remove structural alterations and major installations, that failure did not constitute a constructive holdover (see, Arnot Realty Corp. v. New York Telephone Co., 245 A.D.2d 780, 665 N.Y.S.2d 478;  Canfield v. Harris & Co., 222 App.Div. 326, 225 N.Y.S. 709, affd. 248 N.Y. 541, 162 N.E. 517).

 Plaintiffs' third cause of action alleging an entitlement to special damages by reason of defendant's creation of a public nuisance was properly dismissed, since the alleged damages are merely for economic loss occasioned by breach of a contract to remedy asbestos contamination caused by a defective hybrid fireproofing assembly, and not for personal injuries or property damage independent of defendant's failure to fulfill said contractual obligations (see, New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 316, 639 N.Y.S.2d 283, 662 N.E.2d 763;  Sommer v. Federal Signal Corp., 79 N.Y.2d 540, 551, 583 N.Y.S.2d 957, 593 N.E.2d 1365;  Rockefeller Univ. v. Tishman Construction Corp., 232 A.D.2d 155, 647 N.Y.S.2d 513, lv. denied 89 N.Y.2d 811, 657 N.Y.S.2d 404, 679 N.E.2d 643).  “[T]he mere potential for serious physical injury or property damage is not enough to create a duty independent of the contract thereby authorizing recovery in tort” (Rockefeller Univ., supra, at 155, 647 N.Y.S.2d 513).   We have considered plaintiffs' other arguments and find them to be unpersuasive.

MEMORANDUM DECISION.