| Theatre Row Phase II Assoc. v City of New York |
| 2003 NY Slip Op 19238 [2 AD3d 187] |
| December 9, 2003 |
| Appellate Division, First Department |
| As corrected through |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Theatre Row Phase II Associates, Appellant, v City of New York, Respondent. |
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Order and judgment (one paper), Supreme Court, New York County (Joan Madden, J.), entered on or about March 21, 2002, which, inter alia, dismissed the complaint, denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment on its third counterclaim, unanimously affirmed, without costs.
"Additional rent" was based, in part, on a portion of profits, which consisted of gross revenue less expenses. In determining the profit factor, the IAS court correctly interpreted the unambiguous language of the lease as limiting the tenant's right to include as expenses for a given fiscal year the management fees actually paid in that same fiscal year.
Plaintiff's other contentions are unavailing since they are based upon a misreading of the order. No money judgment has been awarded. The City's third counterclaim merely sought declaratory relief that the lease had been breached, and that is all the IAS court has granted. Concur—Rosenberger, J.P., Lerner, Friedman and Marlow, JJ.