99 A.D.2d 1022 | N.Y. App. Div. | 1984
Order of the Supreme Court, New York County (Amann, J.), entered April 20, 1983, granting the motion of defendants City of New York and the board of education for summary judgment in their favor dismissing the complaint, is reversed, on the law, and the motion for summary judgment is denied, without costs. Appeal from the decision of the Supreme Court, New York County (Amann, J.), dated April 18,1983 and entered April 20, 1983, is dismissed as nonappealable, without costs. I Plaintiffs are the owners of the subject premises in The Bronx, which was leased to the defendants city and board of education in October of 1969 pursuant to a board of estimate resolution adopted in August, 1969. The lease was for a term of 10 years for use as an annex to a school, commencing on August 1,1970 until July 31,1980. It was drafted by the defendants-respondents. I The lease provided a covenant in typed form: “(2). That at the expiration of the term herein granted or any extension thereof, the tenant shall and will quit and surrender said premises in as good state and condition as reasonable use and wear thereof will permit, damage by the elements excepted”. Likewise in typed form, the lease provided a covenant that “(8) Tenant shall save the Landlord harmless against all claims for injuries sustained by its employees and invitees connected with its use and occupancy of the premises; Tenant obligation in this respect shall apply to any acts of vandalism on the part of such person causing physical damage to the structure and Tenant shall repair all such damage at its own cost and expense.” It also contained a tenant’s covenant in typed form to “Furnish custodial services”. U Plaintiff brought the instant action for damages for alleged waste and destruction of the demised premises upon the basis of both a breach of the lease agreements by defendants tenants and for negligence. The allegations in the complaint and in the motion papers at Special Term were that defendants had decided not to use the premises for the intended purposes and had left them vacant since July, 1977 although continuing to pay the rent until the termination date of the lease in July, 1980. Further, it was alleged that during this period until the lease terminated (and on one occasion afterward) there were some eight separate acts of vandalism by unknown third parties, yet defendant did nothing to prevent these acts except to secure the door locks and windows where previous entry had been made. Further, it was alleged defendants tenants did not fulfill their duty to make repairs to the premises or return it in the condition it was leased except for wear and tear, as they had covenanted to do. 11 Defendants city and board of education moved for summary judgment dismissing both the main complaint and the third-party complaint (brought by plaintiff’s property insurer, First State Insurance Company, as subrogee), upon grounds that documentary