use".
At the time of the execution of the lease, Marvin Rothenberg
was the president of and a stockholder in the corporate lessor, the
remaining stockholders having been Marvin Rothenberg's brother and
Richard L. Cohen. At that time, too, the building was managed by
floor and mezzanine with office space. The
stated purpose for which the premises were leased was "for
warehouse
1965-1967, comprised some 26,600 square feet and
consisted of a ground
Redhill Construction Corp. in or about
the period
1, 1987 and ending February 28, 1997.
The building, constructed by
12th Floor 54 Columbine DriveNew York, N-Y 10177-0077 Glenmont, NY 12077
By written instrument dated August 18, 1987 (Exhibit 2) the
plaintiff, Stewav Realty Corp., leased to the defendant, Computer
Associates International, Inc., the building known as 712 Stewart
Avenue, Garden City, New York, for a period of nine and one-half
years commencing September
DeRLGHT, JR. LAWOFFICES OF STEVEN L. HERRICRAttorney for Plaintiff Attorneys for Defendant250 Park Avenue,
-_-__________-______~~~~-~~--~__~~~~ X
ROBERT E.
KmDefendant.
19 APR
19515/97INC.,
DATED:
-against-
COMPUTER ASSOCIATES INTERNATIONAL, INDEX NO.
J.Plaintiff,
FART 2STEWAV REALTY CORP.,
BY: BURKE,
_____________--_-___~~~~~~~-~--~-~-_ X I.A.S.
MEMORANDU M
SUPREME COURT, NASSAU COUNTY
,ilating equipment and any required repairs thereto."ven+
'r38th11 of the lease required that the tenant pay the
cost of fuel and power for the heating, ventilating and air
conditioning equipment, keep the same in proper repair and
maintain a service and maintenance contract on said equipment.
Further, "Tenant shall be responsible for all costs and expenses of
inspection of electrical, heating, plumbing and air conditioning
and
$21,665.32, inclusive
of real estate taxes and a previously unpaid balance of $240.53.
Paragraph
$15,627.50 plus taxes. The rent for the month of February,
1997, due OR the first day of that month, was
Associatesl'), a company which had been associated with Rothenberg
for many years in real estate ventures and investments. One of the
principals of Cohen Associates was the same Richard L. Cohen, who
has since retired as an active shareholder. As part of its role in
managing 712 Stewart Avenue. Cohen Associates, or Richard L. Cohen
as designated agent, was to collect the rents under the subject
lease and pay the expenses attributable to that property.
The lease terms provided for the payment of annual minimum net
rent of $166,250 for the first three years of the term, $176,092
for the ensuing four years and $187,530 for the remaining two and
one-half years. In each of those periods the rents were payable in
monthly installments, together with one-twelfth of the annual
taxes, insurance premiums and other items of "additional rent".
The stipulated monthly rent for the final period-of the leased term
was
19515/97 2.
Cohen Associates Real Estate Management, Inc. (hereinafter "Cohen
Stewav Realty v. Corn-outer Assoc. Index No.
'The court is unable to determine from the lease provisionsany reference to a 1% Maintenance Charge. Further, no evidence hasbeen presented relative to any claim by either plaintiff ordefendant concerning interest accrued on the security deposit.
Landlord".l
'1%' Maintenance Charge which shall belong to the"less the
interest-
bearing account and to pay the accrued interest annually to the
Tenant
i'49h11 it was further provided that the
landlord was to maintain the security deposit in an
"shall be returned to
said Tenant". At paragraph
"as security for the
[tenant's] faithful performance of all the covenants and conditions
of the lease" and which, if so performed,
1151St11)
granted the tenant the right to extend the term of the lease for an
additional two months beyond the expiration date of February 28,
1997, i.e., to April 30, 1997, at a flat monthly rental of $32,000
but otherwise on the same terms and conditions, provided that it
gave 60 days notice to the landlord and provided also that the
tenant was not then in default in its obligations under the lease.
Pursuant to paragraph 27 of the lease the tenant deposited
with the landlord the sum of $32,000
"66th11 of the lease (referred to in paragraph
$32,000.00 per month".
Paragraph
¶66 then and
in such event, Tenant shall remain as a month to month tenant at a
monthly rental of
"Ciln the event
Tenant fails to vacate the premises upon the expiration date of
this lease, or as extended as provided herein as per
"51St11 it is provided that
19515/97 3.
Under paragraph
Realty v. Computer Assoc. Index No. Stewav
"61Stt1 permits the tenant to make interior, but not
exterior, non-structural alterations to the premises in accordance
with "municipal requirements" and to do so solely at the tenant's
expense. It is also provided that the cost of removing such
interior alterations or changes at the expiration of the lease, not
exceeding $25,000, shall be reimbursed
landlord to a maximum of 60% of such cost
The plaintiff's Amended Complaint in
to the tenant by the
this action alleges that
at the expiration of the demised term on February 28, 1997, the
tenant left the premises in a state of disrepair and physically
occupied the building through May 7, 1997. It is alleged that
tenant did not exercise its option to extend the lease to April
the
30,
1'.
Paragraph
[.andl will not permit the
accumulation of waste or refuse matter * *
"Tenant" will not
disfigure or deface any part of the building * * except so far as
may be necessary to affix trade fixtures
tear."
Paragraph "THIRD" provides that the
IIt01
suffer no waste or injury; * * and at the end of the term, to quit
and surrender the demised premises with all alterations, additions
and improvements in good order and condition, except for ordinary
wear and
to1 pay the expense of such repairs;
"SECOND" of the lease requires that the tenant “take
good care of the demised premises, fixtures and appurtenances, and
all alterations, additions and improvements to either; * * make all
repairs in and about the same necessary to preserve them in good
order and condition [and
19515/97 4.
Paragraph
Cornouter Assoc. Index No. Stewav Realty v.
1138tht1 of the lease, which was paid by the landlord in the
amount of $406.88, contests the repair and restoration costs
claimed by the plaintiff under Counts Two and Three of the
Complaint.
onthe heating,
ventilating and air conditioning equipment, as provided by
paragraph
1'55th11
of the lease with reference to repair and maintenance costs has
resulted in stated monetary damage to the landlord, the identical
amount of which is stated in "COUNT THREE", a cause of action based
upon the tenant's waste and the cost of restoring the premises.
As part of the relief sought, plaintiff also seeks to recover
its attorneys' fees and disbursements, together with interest.
The defendant tenant's Answer denies in one form or another
the material allegations of the Amended Complaint, alleges that it
vacated the premises on or before the lease expiration date,
surrendered possession to the landlord by said date and seeks
recovery of its $32,000 security deposit. Defendant, while
acknowledging that it omitted to pay the cost of providing the
inspection for a service and maintenance contract
'138th11 and
TWO")
that the tenant's breach of paragraphs "SECOND",
(I'COUNT It is further alleged by the plaintiff landlord
ONE").1151strr ("COUNT
$21,665.32
and that it became a month to month tenant for the months of March,
April, May and June, 1997 at the monthly rent of $32,000 as set
forth in paragraph
1166th11 provides, that it failed to pay the
monthly rent due on February 1, 1997, in the amount of
19515/97 5.
1997, as paragraph
Cornouter Assoc. Index No. Real'cv v. Stewav
Redhill stationery dated
December 29, 1996, itemizing ten specific conditions in and about
up."
Based upon his tour of the building with Benz, Rothenberg
prepared a handwritten punch-list on
"to help clean it [the subject premises]
out when our lease was
"month to month tenant"
at $32,000 per month. In fact, however, Rothenberg testified to
visiting and viewing the premises in December, 1996, in the company
of Edward Benz, an assistant vice-president of Computer Associates.
Benz had testified at his 1998 deposition that, as an officer whose
responsibilities included Computer Associates' facilities, he had
been asked by his employer
Stll, supra, and is based upon the
contention that the tenant failed to vacate the premises by that
date, thereby continuing its occupancy as a
"51
221, no part of
which has been paid. While the defendant concedes it owes the
February rent and claims that that sum is more than offset by its
$32,000 security deposit, it denies any obligation for the months
that follow.
The qravamen of the landlord's claim for rents due after the
lease expiration on February 28, 1997, rests upon the holdover
provisions of paragraph
$21,665.32 (Exhibit 22) and for the months of March, April and May,
1997 at the rate of $32,000 per month (Exhibit
proof, the plaintiff established that on
February 1, 1997 it billed Computer Associates for the February
rent and additional rent due under the lease in the total amount of
19515/97 6.
The case was tried to a court without a jury.
As part of its
Stewav Realty v. Computer Assoc. Index No.
t-hat 'he found the doors open and observed that workers or
th) he again visited and
inspected the premises. It appears he may have been accompanied on
that occasion by Richard Cohen (see Exhibit C). Rothenberg stated
Janus-ry and February, 1997, and that upon his
return in early March (probably March 4
Izl addition, he stated,
Associates' files stored in the building,
a janitorial staff to
he reviewed Computer
removed some to
company's headquarters and discarded others. All of this,
testified, was accomplished before February 28, 1997 and, by
first of March, Computer Associates had neither its employees
any contractors on the premises.
the
he
the
nor
Rothenberg testified that he had been vacationing in Florida
during the months of
c;,_rials and had engaged
clean the premises.
m-+e
l/6".
In his testimony Benz acknowledged receiving a copy of Exhibit
3 but stated that he did not discuss its contents with Rothenberg.
His discussion of the list was with other persons at Computer
Associates whom he did not identify. Benz testified that by early
January he had hired a carting company with dumpsters to remove
debris and unwanted
[week of] & repairs w/o
[Benz] says they
Will start removais
"ih]e
.zn6 had a later telephone conversation about the list,
Rothenberg added to Exhibit 3 his note that
Senz
punch-
list to
&ified that he sent a copy of the test
at which time "the place was still
loaded". Rothenberg
ago","two weeks
-_ting, Rothenberg noted that the "walk through" had
taken place
w-i3). In that
19515/97 7.
the premises requiring repairs, replacement or cleaning (Exhibit
Realtv v. Computer Assoc. Index No. Stewav
Associates was in
the building doing major repairs in the form of masonry, carpentry,
13th, each time.finding that
construction workers were present in the building, although he
initially stated he did not known who had hired them. In March and
thereafter, Rothenberg later testified, "Computer
build‘ingll. Rothenberg
nevertheless disagreed with the cross-examiner's propounded
question that the tenant had "vacated the premises as of February
28, 1997".
Rothenberg testified that he visited the building on five to
seven additional occasions up to March
"they had
block and sand and other materials in the
"[tlhey removed all of their stored possessions" but that
the stored items that they had in the premises", that
"had.emptied the premises of
all of
cross-
examination that Computer Associates
. With
respect to the same visit, Rothenberg testified on
II*
"1 found that they [Computer Associates]
had vacated the warehouse and left it broom clean *
bh, the plaintiff had not yet retained
contractors to correct any conditions observed by Rothenberg and/or
Cohen on that date. The workers or contractors seen on the
premises were those who had been hired by Computer Associates to
remedy the punch-list conditions. Nevertheless, Rothenberg on
direct examination testified that on that initial visit in March,
although he saw that the punch-list repairs reflected in Exhibit 3
had not been completed,
19515/978.
contractors were in the building, supplying building materials and
performing labor. By March
Stewav Realtv v. Computer Assoc. Index No.
tear", which is
lease period". The letter adds:
bathrooms, performed extensive landscaping work(including cutting down vines which had grown attached tothe building) and left the space in good condition.
* I have been advised that CA representativesthoroughly broom-cleaned the premises, scrubbed the_
that it had vacated the premises
term, leaving the space in "good
ordinary wear and
* m *
19), rejecting the assertion that it is
a holdover tenant and stating
prior to the end of the lease
order and condition, except for
"bound to occur over a ten year
have
12'" (Exhibit
321,665.32, that as of the abovedate has not been received."
Computer Associates' attorney responded to Cohen by letter
dated March
"A list of obvious repairs will follow.
"Please, also consider this letter as a demand for theFebruary rent payment of
$32,000.00. We expect this rent to bepaid in a timely fashion until such time as all repairsand restorations to the building have been completed.
6th as
follows (Exhibit C):
"Assuming that Computer Associates has vacated thepremises at 712 Stewart Ave, since no officialnotification was ever received, we inspected the buildingon March 4, 1997 and found that Computer Associates hasfailed to make any repairs and/or restorations to thepremises. The building is not rentable at this time inits present condition. Computer Associates failure toact has made them a holdover tenant at the monthlyholdover rental of
qth visit, Richard L. Cohen of
Cohen Associates wrote to Computer Associates on March
4), about which more will be said.
Following the initial March
Redhill stationery (Exhibit
"[t]he contractors of
Computer Associates".
On March 13, 1997 Rothenberg prepared a second punch-list on
I glazing, etc.", referring to
19515/97 9.
storefront
Stewav Realty v. Computer Assoc. Index No.
HVAC repairs and replacements and the roofing repairs,front door repairs and light fixture repairs and bulb
"We now find that your contractors are making masonry andcarpentry repairs in the building and that you neversurrendered the kevs. Are you intending to also make the
haVe had no response to our letter dated
the total cost
March 13,1997 concerning Computer Associates responsibilityregarding the above reference premises and the need foradditional repair and replacement work at the building.
($2,423.89) and adds:
"We
'HVAC repairs ($817.01) and inspection ($406.88) and
an additional proposal by Griffin Bros., Inc. for roof repairs.
The letter requests that Computer Associates pay
thereof
Redhill Construction and an invoice to Cohen Associates by Lane
Associates for
7), Cohen Associates
forwarded to the Computer Associates a proposal submitted to
* It is true the building was left.broom clean howeveryour company removed walls and did various other changeswhich had to be restored upon vacating the building."
By letter dated April 20, 1997 (Exhibit
'I*
Rothenberg's punch-list of the same date,
requested that the listed repairs and conditions be addressed, and
stated:
D) enclosed 13th (Exhibit
Lease."
Cohen Associates' letter to Computer Associates dated March
reguired under the Lease. If so, we will promptlyperform the appropriate work. If we fail to do so atthat time, your client may exercise the appropriateremedies available to the Landlord under the
\‘If your client is not satisfied with the extent ofthe clean-up work performed by CA, please provide me witha written list specifying in detail any items which itfeels should be repaired or restored and we will thenreview this list to see if those repairs or restorationsare
***
19515/97 10.
These actions are well beyond the requirements of theLease."
Stewav Realty v. Computer Assoc. Index No.
'v. West End Brewing Co., 145 AD 28,
aff'd 207 NY 696, the Third Department, in considering a lease
containing a covenant by the tenant to surrender the premises in
good condition at the expiration of the lease, necessary wear and
tear excepted, held that where the premises, suitable only for a
particular purpose, could no longer be used for that purpose, the
landlord had no claim for rents which would thereafter come due
during the extended period of the lease.
"The covenant to surrender the property in good conditionat the expiration of the lease manifestly can relate onlyto the physical condition of repair. The rule of damagesapplicable to such covenant precludes the idea that lossof rent is included in it. The rule, without variation,is that under such a covenant the damages are what it
clean" was acknowledged not only by Rothenberg's testimony but also
by Cohen Associates ’ letter (Exhibit D), a letter which Rothenberg
admitted he would have worded differently. The court's conclusion,
which necessarily militates against a holdover tenancy and any
responsibility of the tenant for rents claimed for the four-month
period March through June of 1997, is not without precedent.
In the 1911 case of Mucige
billed."
From the foregoing, the court concludes that the defendant
tenant did in fact vacate the leased premises on or before the
expiration of the lease term on February 28, 1997. The goods
Computer Associates had stored there had been removed by that date
and its employees were not on the premises or in possession of the
building. That the building had been vacated and left "broom
Stewav Realt 11.
replacements etc?? Please advise! In any case we expectto receive the holdover rent as
'The question of whether the mere leaving of propertyupon removal constitutes a continuance of the occupancyis usually one of fact. In considering this question offact, it seems to me that not only the value of the goodsleft must be considered, but the ratio of that value tothe amount of the rent of the premises is material.'
"There can be no doubt that there may be cases wherethe mere leaving of property on the premises after theexpiration of the lease would constitute a holding overand retention of possession of the premises as a matterof law. If a tenant for a definite period of a year oryears in possession of a store should leave his entirestock and fixtures in the building after the expiration
Waltzer (144 N. Y. Supp. 768) Mr. Justice Lehman wrote:
710). Merely leaving property on the leased premisesafter the expiration of the lease may or may not entitlethe landlord to treat the tenant as one holding over, andliable for another year's rent. In Broome-Clinton Co. v.
ITo entitle a landlord to claim an impliedlease for another year on account of a tenant's holdingover, the possession of the tenant must be an actualpossession of the property as against the ‘landlord, sothat the tenant would by virtue of his possession becomea trespasser.' (Myers v. Beakes Dairy Co., 132 App. Div.
"In order to give the landlord such right there mustbe an actual retention of possession of the premises bythe tenant.
(1927), the Second
Department considered the situation in which the defendant tenant
abandoned the property prior to the expiration of the five-year
lease, leaving behind certain equipment and facilities and leaving
the premises is a state of disrepair. The tenant, however, had
removed its own supplies and personal property prior to the lease
expiration. Based upon the equipment remaining, the plaintiff
landlord sought to treat the year-to-year tenant as a holdover for
a year beyond the lease expiration date and sought rent for that
additional year. The court held:
& Co., 222 AD 326 Canfield v. Harris
311.
In
[at. p.
19515/97 12.
would cost to put the premises in the required state ofrepair"
Stewav Realtv v. Computer Assoc. Index No.
28, 1997 had removed its own stored goods and personal property
from the premises and left the building in broom-clean condition.
Such materials as were seen on the premises commencing four or five
.I' Here, as finder of the facts, this court
has found, as above stated, that Computer Associates by February
*
Canfield was affirmed, the Court of
Appeals holding that "whether defendant became liable to pay rent
for another year by leaving property on the premises presented a
question of fact *
'I.
On appeal (248 KY 541)
* ot'ner facts and circumstances surrounding thetransaction. *
-taking intoconsideration the nature of the property leased; theamount paid as rent, the value of the real property, thevalue O f the personal property left on the leasedpremises, the intent with which it was left, and all
"Not all cases, however, can be.decided as a matterof law. The question of whether the mere leaving by thetenant of property upon the leased premises after theexpiration of the lease makes him liable at the electionof the landlord, for another year's rent, is usually aquestion of fact, to be determined by
iic W. Orphan House v.Hoyle, 79 Misc. 301.).
1 (See, also, Trustees of L.
w-here it has been held as a matter of law that the mereleaving of a small amount of personal property of littlevalue upon the leased premises after the expiration ofthe lease did not entitle the landlord to treat thetenant as one in actual possession after the expirationof the lease and liable for rent for another year. Inthe case of Gibbons v. Dayton (4 Hun, 451) it was said:'The rooms were excessively dirty; but the litter andfilth, and worthless fragments and articles which tenantsare often accustomed to leave behind them, have neverbeen held to constitute a continuance of the tenancy.The landlord's remedy, if any, for such an injury isquite different from treating the tenancy as renewed byomission to carry everything away whether valuable ornot.
(Haynes v. Aldrich, 133 N. Y. 287.) There are also cases
lease{ that fact would doubtless require a courtto hold as a matter of law that he retained actualpossession of the premises, and, at the election of thelandlord, could be treated as a tenant for another year.
of the
19515/97 13.Cornouter Assoc. Index No. Realty v. Stewav
te&ms and covenants as those contained in the original instrument,
the language of Farrell and Mudge is applicable: the landlord's
NY2d 298, there holding that,
while a tenant remaining in possession on the expiration of a term
is a holdover with implied continuance of the tenancy on the same
York v. Penn. R.R. Co., 37 New
,decided City
of
1001-1002)."
The Court of Appeals also cited approvingly the language of the
Mudge decision, above.
Three years later, in 1975, the Court of Appeals
N. Y. Jur., Landlord and Tenant, 8486; Ann., 80ALR 2d 983, §634; 34
ea.],[ad Rasch, New York Landlord and Tenant Y 2d
1155; 2 2d, 243, 245, affd. 13 N
TobinV. Union News Co., 18 A D
"It is well established that when an action isbrought by a landlord for breach of a covenant to keep ingood repair after the expiration of the lease, the costof accomplishing what should have been done-measures thelessor's damages. (Appleton v. Marx, 191 N. Y. 81;
o'f damages to the City for repairs was upheld.
* * in good and sufficient repair
and condition." The lessee vacated the pier at the termination of
the lease, and the City brought an action against it for damages
for breach of the lessee's covenant to repair. The trial court's
award
* and the structures thereon *
"keep and maintain the said property
lo-
year term at an annual rent. That lease required the lessee, at
its own costs and expense, to
-pier), was for a 33'd Street
(1972),
presented facts in which the City leased two Brooklyn piers to
Farrell Lines, one of which (the
NT2d 76 ATew York, 30
19515/97 14.
days later were building materials needed for repairs undertaken by
the tenant.
Farrell Lines v. City of
Cornouter Assoc. Index No. Stewav Realtv v.
(1998), in which it was held
that where the tenant had failed to perform extensive restoration
work, including the removal of structural installations but had in
fact vacated the premises, the lessor was not entitled to "recover
lost rental income on the theory that defendant held over its
tenancy". Although the defendant in vacating "failed to remove
structural alterations and major installations, that failure did
not constitute a constructive holdover" [citing Arnot and Canfield,
supral.
AD2d 126
"[T]he law is well settled in New York
that a tenant who has vacated premises but breached covenants to
repair cannot be held liable for holdover rent while the repairs
are made and the premises unleased" [citations omitted].
To the same effect is the First Department decision in
Chemical Bank v. Stahl, 255
(1997), the Third Department held that a covenant by a tenant to
keep the building in good repair and condition, reasonable wear and
tear excepted, to remove its fixtures and alterations at the
expiration of the lease and to return the premises in broom-clean
condition, did not permit the landlord to seek damages in the form
of rents where the tenant had vacated the premises by the
expiration of the term.
AD2d 780&-not Realty Corp. v. New York Telephone Co., 245
19515/97 15.
damages are to be measured by the cost of repair where, as here,
the tenant has vacated the premises by the expiration date of the
lease.
In
Cornouter Assoc. Index No. Stewav Realtv v.
3" and the second page‘1 of n3 of 3".
Redhill stationery,the Exhibit.
that logo does not appear onIn addition, while the Exhibit as so marked consisted
of two pages, the first page is headed
2Although Marvin Rothenberg testified that Exhibit 4 for Id.was prepared on
Identification2. The list was
neither sent to nor discussed with Benz and was apparently prepared
"66th" of the lease instrument.
The December list was, in any event, supplanted by a second
two-page punch-list dated March 13, 1997, which, in that form, was
initially marked Exhibit 4 for
th provided the
plaintiff with a clear indication that the tenant intended to
vacate the building by the end of the term; notwithstanding
Rothenberg's testimony that he had no knowledge or notice whether
the lessee would opt to extend the term by two additional months as
provided by paragraph
3), two months prior to the lease expiration
date, was, as stated, prepared on the occasion of or in consequence
of his inspection of the premises with Edward Benz. The notation
on that list that Benz advised Rothenberg that Computer Associates
would begin "removals and repairs" by January 6
Redhill stationery) dated December
29, 1996 (Exhibit
late charges applicable
thereto, the extent of the plaintiff's restoration and repair costs
remains to be examined.
Rothenberg's punch-list (on
court's
determination that Computer Associates on March 1, 1997 became
neither a month-to-month nor a holdover tenant and that the
plaintiff landlord, Stewav Realty, may not maintain its claim for
rents after February 28, 1997, or for
19515/97 16.
In accordance with the foregoing, and this
Realty v. Computer Assoc. Index No. Stewav
‘\4/30",
Griffin Eros., Inc. had repaired roof leaks and billed the cost to
13rh
list, it was testified by Rothenberg that Computer Associates had
"completed" 11 of the 42 items listed. The list also included
three additional items of repair and notations that, as of
Redhill
stationery on which Rothenberg indicated by check marks the repair
items or conditions which had been completed (Exhibit 5). As of
the date of that list, which is more extensive than the March
left." Notations added to the roofing and HVAC
items indicate that roofing and HVAC contractors-were checking the
respective conditions.
On April 30, 1997, the two-page list (Exhibit 4) was updated
by Rothenberg to a 3-page list and a cover sheet on
* *
Normal wear and tear does not create the situation that Computer
Associates has
"[alpparently you are unaware of the fact that proper
repairs were not made at 712 Stewart Avenue, Garden City.
blowersN. On the same date that
appears on the exhibit, March 13, 1997, Richard L. Cohen of Cohen
Associates wrote to Computer Associates (Exhibit D, referred to
above), enclosing a copy of the two-page punch-list and stating in
part that
"check[ing] rooftop HVAC and
13th he was in the building on approximately five
occasions.
Two of the 31 items listed on Exhibit 4 (subsequently admitted
in evidence) refer to having a "roofer check roofing" and
4th
and March
19515/97 17.
by Rothenberg on the last of his visits to the premises in the
month of March of 1997, he having testified that between March
Stewav Realty v. Computer Assoc. Index No.
6'h and Rothenberg had already received a key to it.
Schwartz,.toured the premises. On
that date, he testified, Great Bay's subcontractor-glazier, Five
Star Fabricators "may have been" working. Rothenberg stated that
the building was "fairly clean" and that three specific repair
items on the punch-lists had been remedied while four were not.
Schwartz' s testimony as to his observations on that visit
presents a totally different picture, for he described extensive
damage and disrepair and floor areas strewn with trash, debris and
puddles of water. Significantly, Schwartz's testimony describes,
among other things, sheetrock damage and a damaged front door.
Rothenberg, on the other hand, earlier testified that the sheetrock
had been repaired. Moreover, the front door had been replaced
before May
6th, he and
his real estate attorney, Robert
St', the date of the Exhibit
12 letter, he had received a key to the repaired or replaced front
door and entryway from the tenant's contractor, Great Bay
Contracting, Inc., and that on the following day, May
. His undated list of required
repairs consisted of 24 conditions and, additionally, the roof and
HVAC repairs.
Rothenberg testified that on May
30t" (Exhibit 12)
19515/97 18.
Rothenberg and that Lane Associates had submitted a proposal to
Rothenberg for work on the HVAC system.
On Cohen Associates stationery, Rothenberg wrote to Computer
Associates on May 5, 1997 concerning his re-inspection of the
building on April
Realtv v. Computer Assoc. Index No. Stewav
Redhill submitted a bid to perform the remaining repairs for a
Redhill
Construction Corp. to Richard L. Cohen of Stewav Corporation,
6th. The earliest photographs are
dated May 15, 1997.
By unsigned letter dated May 22, 1997 from
4th thru May
6th. The May dates on the
faces of the photographs appear to have been recorded by the camera
Rothenberg used. Therefore, while the court, in the absence O f
evidence to the contrary, accepts so much of his testimony as
states that the photographs depict conditions seen in May, it is
equally clear that the same testimony establishes that many of the
depicted conditions are said to have existed at or about the time
of Rothenberg's initial visit to the building with Benz in December
of 1996 and with Richard Cohen in early March of 1997. The
countervailing consideration lies in Rothenberg's testimony that
Computer Associates' contractors were engaged in repair work during
the period from March
ited the premises in December of 1996 and
in early March. They show pictorially many of the conditions of
disrepair reflected in the March 13 and April 30 punch-lists
(Exhibits 4 and 5) and conditions at least comparable to those that
Rothenberg stated he observed on May
T-he photographs are
said to depict in May certain of the conditions he had observed
when he initially vis
13-32), he having testified that he took the
pictures on specified dates in May of 1997.
13-l to 13-29
inclusive, 13-31 and
19515/97 19.
On the plaintiff's case, 31 photographs were received in
evidence through Rothenberg's testimony (Exhibits
Stewav Realty v. Computer Assoc. Index No.
_-g's testimony was offered, 8 were said to have been "doneRothenbor
the 25 numbered items comprising Exhibit 8 to which
ma3:es him competent and qualified to testify to repair
costs in this case. The element of uncertainty about his testimony
arises in other respects.
Of
Redhill Construction Corp., a general
contractor. His experience, he testified, included estimating
construction costs on 400 or more such projects, all of which, the
court finds,
undispueed facts are that
Marvin Rothenberg is a civil engineer who for many years has been
in the business of developing and building industrial and
commercial buildings through
'I the
Rednill to himself as a
principal of the lessor corporation
$5,193.85 was provided by Marvin
Rothenberg. Although the defendant objected to his testimony,
principally on the ground that it was self-serving, that is, that
it was offered by the principal of
restoration costs ofHV_AC
$16,433.73.
The testimony relative to the repair costs of $9,633 and the
($406.88), an amount the tenant concedes it
owes. The grand total claimed is
HVAC system inspected
during the term of the lease, plaintiff's asserted damages are
increased by that cost
negiect or omission to have the
$16,026.85, which the plaintiff
seeks to recover of the defendant for those repairs to the building
which exceed "ordinary wear and tear". In addition, due to the
tenant's
($5,193.85), or a total of
HVAC system to working
order
19515/97 20.
total price of $9,633 . It is that sum, together with roof repairs
($1,200) and the cost of restoring the
Stewav Realty v. Computer Assoc. Index No.
4Rothenberg initially testified that Items 7 and 8 were doneby the tenant and later changed his testimony to say that the twoitems were "not done".
3Although Exhibit 8 lists 25 items of repair, the actualnumber is 26, since there are two items indented after Items Nos.1 and 15 and with allowance for the fact that Items 5 and 6 arecombined.
"done" which are also16), totalling $1,405, comprise repair costs
24), totalling $2,493, while made the subject of Rothenberg's
estimates of repair costs, are disallowed by the court. The best
evidence of such costs are receipted bills showing the amounts paid
by or in behalf of the landlord.
The remaining items of Exhibit 8 (Items 1, 3, 4, 14, 15 and
by.the landlord" (Items 2, 10, 11, 18, 21, 22, 23 and
25), the court
accepts Rothenberg's testimony as to the estimated costs of such
repairs. The total amount thereof is $5,735.
Those items set forth in Exhibit 8 which were stated to have
been ‘done
tenant4.
With regard to all repairs cost-estimated by the witness, the
calculation was based upon his knowledge of the cost of materials
and labor rates of $45.00 to $50.00 per hour for skilled and $20.00
to $25.00 per hour for unskilled workers, without the inclusion of
either overhead costs or profit. As to those repairs which had not
been made (Indented item under Item 1 and Items 5, 6, 7, 8, 9, 12,
13, Indented item under 15, and Items 17, 19, 20 and
"doneN or repaired by the
3. None, he
testified, were
I without specifying who had made the repair "done"
19515/97 21.
by the landlord", 12 were "not done" and 6 were simply described as
Realty v. Computer Assoc. Index No. Stewav
fourth" of the proposed removal and replacement cost of
the rooftop units, and "maybe one-half" of the cost of removing and
replacing interior heating units. The Lane proposal was marked as
Exhibit 14 for Identification, but the defendant's objection to its
admissibility was sustained.
Based upon the foregoing, the plaintiff is entitled to recover
from the defendant the following:
"[b]y being done I'm speaking of those things done by management
[Cohen Associates] or myself by the owner". Since the testimony in
respect of these 6 items represents a claim against the tenant for
reimbursement, the plaintiff should have substantiated that part of
its claim through the production of receipted invoices, not
estimates. The component sum of $1,405 is accordingly disallowed
for failure of proof.
The testimony of Rothenberg also included his "estimate" that
a 5-page proposal submitted by Lane Associates for the replacement
of the HVAC system required only repair, not -replacement. He
therefore testified that the cost of repairing the system would be
"maybe one
19971", Rothenberg responded that[May 22,
19515/97 22.
the subject of Rothenberg's estimates but without specific
attribution of the party or contractor that made the repair. When
initial reference was made to these six items of Exhibit 8, and in
response to questions about "which ones have been done since the
date of the document
Stewav Realtv v. Computer Assoc. Index No.
"In the event of any action for rent or additional rentcommenced by the Landlord, the Tenant hereby agrees notto assert any offset or counter claim, but to bring aseparate action in its own behalf."
The court is unaware of any pre-trial relief sought by the
plaintiff to dismiss the counterclaim based upon the preclusive
language of paragraph 50. Nor was that issue raised during trial
or in the submission of post-trial memoranda except by the
"50th" of the August 18, 1987 lease specifically provides
as follows:
interest" is
set forth under the heading "FOR A SET OFF AND COUNTERCLAIM". Yet
paragraph
$32,000.00, plus appropriate
S30,507.20
Plaintiff's third cause of action ("COUNT THREE"), which
sounds in waste, seeks recovery of the same monetary sum as is
alleged in "COUNT TWO" and is predicated upon damage to the
"plaintiff's estate in reversion".
waste is subsumed in COUNT TWO and,
thereunder is or may be granted.
With respect to the defendant
Plaintiff's cause of action for
accordingly, no separate relief
tenant's Answer to the Amended
Complaint, it. is patent from the body of that pleading that the
tenant's claim against the landlord for "the return of its security
deposit in the amount of
5,735.oo
Total
HVAC survey and inspection cost 406.88
Repair costs allowed
1,200.00
1,500.00
Roof repair cost (Griffin Bros.)
$21,665.32
Late Charge for February 1997 rent
19515/97 23.
February 1997 rent
Cornouter Assoc. Index No. Stewav Realty v.
ali other claims between the parties (Tr.
364-365). In addition, both parties seek that interest be awarded,
plaintiff seeking pre-judgment interest on its claims from March 1,
1997 and defendant seeking an award of interest on its security
deposit of $32,000. The respective claims to interest are also
deferred by the court pending a further hearing as to both matters.
Entry of judgment in accordance with this decision shall also be
deferred pending such hearing.
fees! costs and disbursements. That issue, however,
with the consent of both parties, has been deferred pending the
court's decision as to
award of reasonable
attorneys'
enFender unnecessary additional litigation.
Both plaintiff and defendant seek an
court.by implied waiver of the
tenant's agreement to seek relief in a separate action. To hold
otherwise will
setoff and
counterclaim is properly before the
$1,492.80.
Notwithstanding the plain meaning of paragraph 50, this case
has proceeded through trial and through this Memorandum Decision on
the assumption by both parties that the pleading of the
$30,507.20, clearly that amount is
exceeded by the amount of the security deposit, even without
consideration of claimed interest on the deposit. Simple
subtraction, absent all other considerations, would indicate that
there is due the tenant from the landlord the sum of
dete&mination aforesaid that the
total sum due plaintiff is
19515/97 24.
plaintiff's acknowledgment that it holds the $32,000 security
deposit and would apply it against the sum due plaintiff.
By reason of this court's
Stewav Realtv v. Computer Assoc. Index No.