Tenant appeals from a final judgment of the Civil Court, New York County (Geoffrey D. Wright, J.), entered September 8, 2005, which awarded landlord possession and a recovery of additional rent in the sum of $14,709.36, and from an order (same court and Judge), entered September 8, 2005, which granted landlord's motion for summary judgment on the nonpayment petition.

PER CURIAM:
Final judgment (Geoffrey D. Wright, J.), entered September 8, 2005, modified by reducing landlord's recovery of additional rent to the sum of $9,193.84, and as modified, affirmed, without costs. Appeal from order, same court and Judge, entered September 8, 2005, which granted landlord's motion for summary judgment, dismissed, without costs, as subsumed in the appeal from the final judgment.

The sole substantive challenge now made by
tenant to the possessory aspect of the final judgment issued below — that the utility charges sought herein are not properly considered "additional rent" under the terms of the parties' commercial lease agreement — is improperly raised for the first time on appeal and is thus unpreserved for our review. In any event, paragraphs 19 and 39 of the governing lease, read together, authorize the landlord to collect as additional rent any "expenses incurred by reason of tenant's default" under its lease obligations, including tenant's obligation to pay the "public utility corporation [for] electricity consumed". Nor has tenant raised any legitimate concerns over the accuracy of the Con Edison invoices relied upon by landlord. However, as landlord concedes, the judgment amount must be reduced to $9,193.84, the amount of expenditures incurred by landlord as reflected in its billing statements and correspondence.

This constitutes the decision and order of the
court.
Decision Date: November 28, 2006