[*1]
New World Mall, LLC v New World Food Ct., Inc.
2013 NY Slip Op 51907(U) [41 Misc 3d 137(A)]
Decided on October 29, 2013
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on October 29, 2013
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : RIOS, J.P., PESCE and SOLOMON, JJ
.

New World Mall, LLC, Appellant, —

against

New World Food Court, Inc., Respondent.


Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O'Connor, J.), entered June 7, 2012. The order granted tenant's motion for summary judgment dismissing the petition and denied landlord's cross motion for summary judgment, in a holdover summary proceeding. The appeal brings up for review so much of an order of the same court entered July 25, 2012 as, upon, in effect, granting reargument, adhered to the prior determination (see CPLR 5517 [b]).


ORDERED that the appeal from the order entered June 7, 2012 is dismissed, as that order was superseded by the order dated July 25, 2012, made upon reargument; and it is further,

ORDERED that the order entered July 25, 2012, insofar as reviewed, is affirmed, without costs.

In this commercial holdover proceeding, landlord, a sublessor, alleges that, following its service of a 10-day default notice, it terminated tenant's sublease for nonpayment of certain late charges and electricity charges. Landlord predicates its right so to terminate the sublease upon a claim that the sublease incorporates by reference all the terms of the master lease, including the master lease's conditional limitation provision. The conditional limitation provision of the master lease provides that a default occurs:

"If Tenant shall fail to pay (a) any Interim Rent or Minimum Rent when the same shall become due and payable, and such failure shall continue for ten (10) days after Landlord shall give notice of the failure to Tenant, or (b) any other charge required to be paid by Tenant hereunder, when the same shall become due and payable, and such failure shall continue for thirty (30) days after Landlord shall give notice of the failure to Tenant."

The "Minimum Rent" due under the master lease is defined in the master lease as $2,500,000 annually, or $208,333.33 per month, beginning on a specified date, and "Interim Rent" is defined as $60,000 per month until that specified date. In contrast, the sublease provides for the payment of "Basic Rent," for which it sets out a schedule of the annual rents due under the sublease, beginning at $110,000 per month for the first three years, and further provides for the payment of [*2]other charges designated therein as additional rents. Notably, the sublease contains no conditional limitation for a default in "Basic Rent" or additional rents.

In our view, notwithstanding the provisions of the sublease incorporating by reference all "the terms, covenants, conditions and other provisions" of the master lease, the default provision of the master lease relied upon by landlord herein is not subject to incorporation into the sublease, as the default provision deals with a default in the rents due under the master lease, such as the "Interim Rent" and "Minimum Rent," and these terms have no application to the rents due under the sublease, which are defined in other terms (see generally NPS Engrs. & Constructors v Underweiser & Underweiser, 73 NY2d 996 [1989]).

Accordingly, the order entered July 25, 2012, insofar as reviewed, is affirmed.

Rios, J.P., Pesce and Solomon, JJ., concur.
Decision Date: October 29, 2013