EAST 44TH REALTY LLC v. EAST FORTY FOURTH STREET (2005)

Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered February 28, 2005, which, inter alia, granted defendant landlord's motion for summary judgment declaring that plaintiff tenant is obligated to undertake and complete repairs on the building's south facade and chimney as indicated in defendant's July 2004 notice of default, including bulging bricks and defective and shallow mortar joints, and further declared that the issue of whether plaintiff is obligated to make such repairs is not subject to arbitration, unanimously affirmed, with costs.

 The parties' settlement of a prior action clearly required plaintiff to rectify all of the identified deficiencies in a certain engineer's report, and that report clearly identified the bulging bricks and defective mortar joints on the south facade that plaintiff now claims are not the result of any structural weakness in need of repair.   The settlement also provided that if plaintiff failed to cure the conditions that defendant had claimed constituted lease defaults, and defendant as a result served a notice to cure, plaintiff “shall not be entitled to claim that it was not required to do the work.”   In view of the foregoing, plaintiff will not be heard to argue that the work was either not necessary or not properly specified in defendant's notice to cure.   Because the dispute involves enforcement of the parties' settlement agreement, not their lease, the arbitration clause of the lease does not apply.   We have considered plaintiff's other arguments and find them to be unavailing.