73 A.D.2d 943 | N.Y. App. Div. | 1980
an action by a landlord to recover money for work performed on leased premises, the parties cross-appeal from an order of the Supreme Court, Kings County, dated October 30, 1978, which denied the defendant tenant’s motion for summary judgment upon finding that triable issues of fact exist. Order reversed, on the law, with $50 costs and disbursements payable to defendant, and defendant’s motion for summary judgment granted. Plaintiff, Bush Terminal Associates, is the landlord of a 16-building complex, located in Brooklyn, New York, and known as Bush Terminal. In 1965 one building was leased to defendant, Federated Department Stores, Inc., under a comprehensive 10-year lease that could be renewed for two successive 11-year terms. The option to renew has already been exercised for one such term. The defendant uses the demised premises as a warehouse for its Abraham & Straus chain of department stores. Located in the premises are lavatory facilities which, upon normal use, discharge raw sewage into the Gowanus Canal and New York Bay. This discharge was considered to be in contravention of the 1972 Federal Water Pollution Control Act Amendments and, in 1974, the United States Environmental Protection Agency (EPA) directed the plaintiff to cease the discharge of raw sewage and to construct new sewer lines from the leased premises to the main New York City sewer line. Plaintiff complied with the EPA directive and now seeks to recover the cost of constructing the new sewer lines from the defendant tenant. Plaintiff relies on two sections of the lease for the proposition that the tenant is obligated to bear the cost of installing the new sewer lines. Section 5.1 of the lease provides: "Tenant may use the Demised Premises for any lawful purpose. Tenant will not at any time use or occupy the Demised Premises, in violation of the certificate of occupancy or any law, ordinance, rule or regulation duly promulgated by governmental authority having jurisdiction