| ICSC Legal Database - Cases | Monday, February 22, 1999 05:01 PM |
| Citation: |
| Allstate Management Corporation v. Grand Union Company, 142 A.D.2d 344, 535 N.Y.S.2d 779 (1988). |
| Issue: |
| Whether the County Court, in a summary proceeding, has authority to award rent due without also awarding |
| landlord possession? Whether a sewer assessment is considered a real estate tax within the meaning of the |
| Facts: |
| Defendant, Grand Union Company, leased property for a supermarket in a shopping center managed by Plaintiff, |
| Allstate Management Corporation. The municipality in which the shopping center was located undertook a |
| sewer extension project. Property owners benefitting from the project, including Plaintiff, were assessed for the |
| annual debt service on the notes used to finance the project. Plaintiff in turn billed Defendant $1,429.47, a |
| portion of its assessment. When Defendant refused to pay, Plaintiff commenced summary proceeding to recover |
| possession of the premises and for a judgment of the rent due. County Court held that Defendant was obligated |
| to pay the sum pursuant to Paragraph 41 of the lease. Paragraph 41 requires Defendant to reimburse Plaintiff |
| for its pro rata portion of any increase in real estate tax assessment not due to future construction. However, |
| because the amount in dispute was miniscule relative to Defendant's rental obligation (approaching $100, 000 |
| annually), County Court refused to grant Plaintiff possession and merely awarded a judgment for rent due with |
| interest. Defendant appeals arguing that the court lacked authority to award rent due without also awarding |
| possession and that, furthermore, the assessment is not within the meaning of Paragraph 41. |
| Holding: |
| Affirmed as modified. To make an award of rent due, it must appear only that the landlord is entitled to |
| possession; it is not essential that an award of rent due be indissolubly joined with a judgment of possession. |
| The court did not exceed its authority when it implicitly determined that an award of possession was |
| inappropriate in light of the "deminimis" amount of rent claimed relative to defendant's annual rent. However, the |
| court's finding that Paragraph 41 of the lease applies to sewer assessments is unsound. Unless the terms of a |
| lease clearly so provide, no additional liabilities are to be imposed upon the tenant and uncertainty as to |
| whether additional liabilities should be imposed are to be resolved against the landlord. These principles, |
| coupled with the fact that there is a statutory recognition of a distinction between tax and special assessment, |
| warrant the conclusion that Paragraph 41 does not apply to the sewer assessment. |
| Classification 1: |
| Landlord and Tenant |
| 00120 - Legal Update - Winter 1988 |
|
