TOPS MARKETS INC v. COMPANY OF WEST SENECA

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Supreme Court, Appellate Division, Fourth Department, New York.

TOPS MARKETS, INC., d/b/a Tops Construction Services, Plaintiff-Respondent, v. S & R COMPANY OF WEST SENECA, Defendant-Appellant, et al., Defendants.

Decided: September 29, 2000

PRESENT:  GREEN, J.P., PINE, WISNER, KEHOE and BALIO, JJ. Kevin G. Roe, Syracuse, for Defendant-Appellant. Benjamin M. Zuffranieri, Jr., Buffalo, for Plaintiff-Respondent.

 Prior to the joinder of issue, S & R Company of West Seneca (defendant) moved to dismiss the second amended complaint and plaintiff cross-moved for summary judgment.   Supreme Court properly treated the motion as one for summary judgment, denied the motion and granted the cross motion.   We reject the contention of defendant that it did not receive notice, as required by CPLR 3211(c), of the court's intention to treat its motion as a motion for summary judgment.   Such notice is not required where, as here, the action involves purely legal issues rather than factual issues (see, Shah v. Shah, 215 A.D.2d 287, 289, 626 N.Y.S.2d 786;  cf., Mihlovan v. Grozavu, 72 N.Y.2d 506, 508, 534 N.Y.S.2d 656, 531 N.E.2d 288), defendant expressly requested summary judgment (see, Wein v. City of New York, 36 N.Y.2d 610, 620-621, 370 N.Y.S.2d 550, 331 N.E.2d 514;  see also, Shah v. Shah, supra, at 289, 626 N.Y.S.2d 786) and “both sides deliberately charted a summary judgment course” (Herlihy v. Metropolitan Museum of Art, 214 A.D.2d 250, 255, 633 N.Y.S.2d 106;  see, Weichert v. Kimber, 229 A.D.2d 998, 999, 645 N.Y.S.2d 674).

 The court properly determined that the amendment to section 3.1(i) of the lease, giving plaintiff the “right to abate the entire Fixed Rental until [plaintiff] has been reimbursed for the full amount of the Construction Allowance [by defendant]”, extinguished plaintiff's obligation to pay the Fixed Rental until defendant paid the Construction Allowance in full (see, Dollar Land Corp. v. F.W. Woolworth Co., 48 A.D.2d 373, 376, 370 N.Y.S.2d 45, appeal dismissed 38 N.Y.2d 997, 384 N.Y.S.2d 439, 348 N.E.2d 915).   We reject defendant's contention that the court's interpretation of the amendment to section 3.1(i) of the lease results in the imposition of an unenforceable penalty (see generally, Truck Rent-A-Center v. Puritan Farms 2nd, 41 N.Y.2d 420, 424-425, 393 N.Y.S.2d 365, 361 N.E.2d 1015).   Under the terms of that amended section, as interpreted by the court, defendant is not penalized for its breach of the obligation to pay the full amount of the Construction Allowance.   Rather, payment of the Construction Allowance by defendant is simply a condition precedent to plaintiff's obligation to pay rent (see, Weisblatt v. Schwimmer, 249 A.D.2d 297, 298, 670 N.Y.S.2d 891).

Order and judgment unanimously affirmed with costs.

MEMORANDUM: