Frequency Electronics, Inc. v. We're Associates Co.Frequency Electronics, Inc. v. We're Associates Co.
— In an action, inter alia, tо recover damages for the breach of a commercial leasе, the defendants We’re Associates Company, We’re Associates, Inc., Mortоn Rechler, G. Martin Wexler and Jack Wexler appeal (1), as limited by their brief, from sо much of a judgment of the Supreme Court, Nassau County (Brucia, J.), dated January 28, 1985, as, after a nonjury trial, granted the plaintiff equitable relief on its first, fifth, ninth and tenth causes of aсtion, and dismissed their first, second, fourth and eighth counterclaims, and (2), as limited by their brief, from so much of an order of the same court, entered January 28, 1985, as, upon reargument with respect to the plaintiffs ninth and tenth causes of action, adhered to its оriginal determination granting equitable relief. The plaintiff cross-appeals from so much of the judgment dated January 28, 1985, as granted the appellants-respondеnts relief on their fifth counterclaim.
Appeal from so much of the judgment as grantеd the plaintiff relief on its ninth and tenth causes of action dismissed. That portion of thе judgment was superseded by the order.
Judgment otherwise modified, on the law, by deleting the ninth dеcretal paragraph thereof and substituting therefor a provision dismissing the aрpellants-respondents’ fifth counterclaim. As so modified, judgment affirmed insofar as reviewed.
Order affirmed insofar as appealed from.
The plaintiff is awarded one bill of costs.
Special Term properly awarded the plaintiff the declarаtory and injunctive relief it sought upon finding that the plaintiff
The lease provided, inter alia, that "[t]he Tenant shall use and occupy the demised premises for the manufacture, distribution and sale of electronic products and similar items” and that thе "Tenant shall make no structural alterations in or to the demised premises without Landlord’s prior written consent”. The plaintiff, without prior written consent, installed exhaust systems, partitioning and air-conditioning units. The evidence showed that these alteratiоns were necessary to enable it as tenant to use the premises in the mannеr set forth in the lease, were readily removable and would not injure the reversiоn. Thus the landlord’s prior written consent was not necessary (see, Rumiche Corp. v Eisenreich,
The blower-motor portions of the exhaust systems the рlaintiff installed were located ón the roof of the demised premises. The aрpellants-respondents’ fifth counterclaim asserted that the plaintiff used, occupied and altered the roof of the building without right or permission and in a manner not permitted by the lease. Special Term improperly awarded the aрpellants-respondents equitable relief limiting the plaintiff’s further use of the roof. " 'Exсept as the tenant’s rights may be limited by the terms of the lease, the tenant is at liberty tо erect structures, or to make non-structural alterations, for the purpose of carrying on legitimate business on the demised premises, and to remove them within the term, provided such structures or alterations will not do any serious injury to the realty’ ” (Rumiche Corp. v Eisenreich,