Park Avenue Company, Plaintiff-Respondent, v. 425

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

Park Avenue Company, Plaintiff-Respondent, v. 425 Park Avenue Ground Lessee L.P., Defendant-Appellant, St. Paul Fire and Marine Insurance Company, et al., Defendants.

1989 425

Decided: January 14, 2010

Andrias, J.P., McGuire, Moskowitz, Freedman, Román, JJ. Reed Smith, LLP, New York (Gil Feder of counsel), for appellant. Proskauer Rose LLP, New York (Steven E. Obus of counsel), for respondent.

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Order, Supreme Court, New York County (Charles E. Ramos, J.), entered June 24, 2009, which, to the extent appealed from, granted plaintiff's motion for summary judgment on its second cause of action to the extent of requiring defendant 425 Park Avenue Ground Lessee to pay costs associated with the installation of telecommunications wiring upgrades in the subject premises, and denied said defendant's cross motion for partial summary judgment, unanimously affirmed, with costs.

The parties' lease obligated plaintiff tenant to restore or replace any part of the demised premises damaged or destroyed by fire “as nearly as possible to its value, condition and character immediately prior to such damage or destruction.”   Defendant landlord's withholding of its consent to the proposed restoration plans was unreasonable.   We reject defendant's argument that it reasonably withheld its consent based on safety concerns regarding plaintiff's plan for the restoration.   The plan was approved by the New York City Department of Buildings' Electrical Advisory Board, the agency charged with oversight of electrical installations, and there is no evidence to indicate that the approval was irrational or unreasonable (see Matter of New York Botanical Garden v Board of Stds. & Appeals of City of N.Y., 91 N.Y.2d 413, 418-419 [1998] ).

We also reject defendant's argument that the general lease provision obligating plaintiff to keep and maintain the premises “in first class order, repair and condition” requires plaintiff to upgrade the electrical system as part of the restoration it undertook pursuant to the specific lease provision governing the scope of its obligation to repair fire damage (Greenwich Ins. Co. v Volunteers of Am.-Greater N.Y., Inc., 62 AD3d 557 [2009];  Bank of Tokyo-Mitsubishi Ltd., N.Y. Branch v Kvaerner a.s., 243 A.D.2d 1, 8 [1998] ).

Although the lease provides that defendant will not be required to pay for any work associated with plaintiff's obligation to repair fire damage and restore the premises, installation of the telecommunications wiring and conduit demanded by defendant exceeded the scope of plaintiff's contractual duty.   Moreover, the parties stipulated that while plaintiff would proceed with restorative work that included installation of the telecommunications upgrades demanded by defendant, the issue of whether defendant would be liable for all or part of the costs associated with the upgrades would be determined in this action.   In any event, having breached the lease by unreasonably withholding its consent, defendant is liable on this independent ground for the costs associated with the upgrade.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK