memorandu m supreme court, nassau county x i.a.s. fart 2

use".

At the time of the execution of the lease, Marvin Rothenberg

was the president of and a stockholder in the corporate lessor, the

remaining stockholders having been Marvin Rothenberg's brother and

Richard L. Cohen. At that time, too, the building was managed by

floor and mezzanine with office space. The

stated purpose for which the premises were leased was "for

warehouse

1965-1967, comprised some 26,600 square feet and

consisted of a ground

Redhill Construction Corp. in or about

the period

1, 1987 and ending February 28, 1997.

The building, constructed by

12th Floor 54 Columbine DriveNew York, N-Y 10177-0077 Glenmont, NY 12077

By written instrument dated August 18, 1987 (Exhibit 2) the

plaintiff, Stewav Realty Corp., leased to the defendant, Computer

Associates International, Inc., the building known as 712 Stewart

Avenue, Garden City, New York, for a period of nine and one-half

years commencing September

DeRLGHT, JR. LAWOFFICES OF STEVEN L. HERRICRAttorney for Plaintiff Attorneys for Defendant250 Park Avenue,

-_-__________-______~~~~-~~--~__~~~~ X

ROBERT E.

KmDefendant.

19 APR

19515/97INC.,

DATED:

-against-

COMPUTER ASSOCIATES INTERNATIONAL, INDEX NO.

J.Plaintiff,

FART 2STEWAV REALTY CORP.,

BY: BURKE,

_____________--_-___~~~~~~~-~--~-~-_ X I.A.S.

MEMORANDU M

SUPREME COURT, NASSAU COUNTY

,ilating equipment and any required repairs thereto."ven+

'r38th11 of the lease required that the tenant pay the

cost of fuel and power for the heating, ventilating and air

conditioning equipment, keep the same in proper repair and

maintain a service and maintenance contract on said equipment.

Further, "Tenant shall be responsible for all costs and expenses of

inspection of electrical, heating, plumbing and air conditioning

and

$21,665.32, inclusive

of real estate taxes and a previously unpaid balance of $240.53.

Paragraph

$15,627.50 plus taxes. The rent for the month of February,

1997, due OR the first day of that month, was

Associatesl'), a company which had been associated with Rothenberg

for many years in real estate ventures and investments. One of the

principals of Cohen Associates was the same Richard L. Cohen, who

has since retired as an active shareholder. As part of its role in

managing 712 Stewart Avenue. Cohen Associates, or Richard L. Cohen

as designated agent, was to collect the rents under the subject

lease and pay the expenses attributable to that property.

The lease terms provided for the payment of annual minimum net

rent of $166,250 for the first three years of the term, $176,092

for the ensuing four years and $187,530 for the remaining two and

one-half years. In each of those periods the rents were payable in

monthly installments, together with one-twelfth of the annual

taxes, insurance premiums and other items of "additional rent".

The stipulated monthly rent for the final period-of the leased term

was

19515/97 2.

Cohen Associates Real Estate Management, Inc. (hereinafter "Cohen

Stewav Realty v. Corn-outer Assoc. Index No.

'The court is unable to determine from the lease provisionsany reference to a 1% Maintenance Charge. Further, no evidence hasbeen presented relative to any claim by either plaintiff ordefendant concerning interest accrued on the security deposit.

Landlord".l

'1%' Maintenance Charge which shall belong to the"less the

interest-

bearing account and to pay the accrued interest annually to the

Tenant

i'49h11 it was further provided that the

landlord was to maintain the security deposit in an

"shall be returned to

said Tenant". At paragraph

"as security for the

[tenant's] faithful performance of all the covenants and conditions

of the lease" and which, if so performed,

1151St11)

granted the tenant the right to extend the term of the lease for an

additional two months beyond the expiration date of February 28,

1997, i.e., to April 30, 1997, at a flat monthly rental of $32,000

but otherwise on the same terms and conditions, provided that it

gave 60 days notice to the landlord and provided also that the

tenant was not then in default in its obligations under the lease.

Pursuant to paragraph 27 of the lease the tenant deposited

with the landlord the sum of $32,000

"66th11 of the lease (referred to in paragraph

$32,000.00 per month".

Paragraph

¶66 then and

in such event, Tenant shall remain as a month to month tenant at a

monthly rental of

"Ciln the event

Tenant fails to vacate the premises upon the expiration date of

this lease, or as extended as provided herein as per

"51St11 it is provided that

19515/97 3.

Under paragraph

Realty v. Computer Assoc. Index No. Stewav

"61Stt1 permits the tenant to make interior, but not

exterior, non-structural alterations to the premises in accordance

with "municipal requirements" and to do so solely at the tenant's

expense. It is also provided that the cost of removing such

interior alterations or changes at the expiration of the lease, not

exceeding $25,000, shall be reimbursed

landlord to a maximum of 60% of such cost

The plaintiff's Amended Complaint in

to the tenant by the

this action alleges that

at the expiration of the demised term on February 28, 1997, the

tenant left the premises in a state of disrepair and physically

occupied the building through May 7, 1997. It is alleged that

tenant did not exercise its option to extend the lease to April

the

30,

1'.

Paragraph

[.andl will not permit the

accumulation of waste or refuse matter * *

"Tenant" will not

disfigure or deface any part of the building * * except so far as

may be necessary to affix trade fixtures

tear."

Paragraph "THIRD" provides that the

IIt01

suffer no waste or injury; * * and at the end of the term, to quit

and surrender the demised premises with all alterations, additions

and improvements in good order and condition, except for ordinary

wear and

to1 pay the expense of such repairs;

"SECOND" of the lease requires that the tenant “take

good care of the demised premises, fixtures and appurtenances, and

all alterations, additions and improvements to either; * * make all

repairs in and about the same necessary to preserve them in good

order and condition [and

19515/97 4.

Paragraph

Cornouter Assoc. Index No. Stewav Realty v.

1138tht1 of the lease, which was paid by the landlord in the

amount of $406.88, contests the repair and restoration costs

claimed by the plaintiff under Counts Two and Three of the

Complaint.

onthe heating,

ventilating and air conditioning equipment, as provided by

paragraph

1'55th11

of the lease with reference to repair and maintenance costs has

resulted in stated monetary damage to the landlord, the identical

amount of which is stated in "COUNT THREE", a cause of action based

upon the tenant's waste and the cost of restoring the premises.

As part of the relief sought, plaintiff also seeks to recover

its attorneys' fees and disbursements, together with interest.

The defendant tenant's Answer denies in one form or another

the material allegations of the Amended Complaint, alleges that it

vacated the premises on or before the lease expiration date,

surrendered possession to the landlord by said date and seeks

recovery of its $32,000 security deposit. Defendant, while

acknowledging that it omitted to pay the cost of providing the

inspection for a service and maintenance contract

'138th11 and

TWO")

that the tenant's breach of paragraphs "SECOND",

(I'COUNT It is further alleged by the plaintiff landlord

ONE").1151strr ("COUNT

$21,665.32

and that it became a month to month tenant for the months of March,

April, May and June, 1997 at the monthly rent of $32,000 as set

forth in paragraph

1166th11 provides, that it failed to pay the

monthly rent due on February 1, 1997, in the amount of

19515/97 5.

1997, as paragraph

Cornouter Assoc. Index No. Real'cv v. Stewav

Redhill stationery dated

December 29, 1996, itemizing ten specific conditions in and about

up."

Based upon his tour of the building with Benz, Rothenberg

prepared a handwritten punch-list on

"to help clean it [the subject premises]

out when our lease was

"month to month tenant"

at $32,000 per month. In fact, however, Rothenberg testified to

visiting and viewing the premises in December, 1996, in the company

of Edward Benz, an assistant vice-president of Computer Associates.

Benz had testified at his 1998 deposition that, as an officer whose

responsibilities included Computer Associates' facilities, he had

been asked by his employer

Stll, supra, and is based upon the

contention that the tenant failed to vacate the premises by that

date, thereby continuing its occupancy as a

"51

221, no part of

which has been paid. While the defendant concedes it owes the

February rent and claims that that sum is more than offset by its

$32,000 security deposit, it denies any obligation for the months

that follow.

The qravamen of the landlord's claim for rents due after the

lease expiration on February 28, 1997, rests upon the holdover

provisions of paragraph

$21,665.32 (Exhibit 22) and for the months of March, April and May,

1997 at the rate of $32,000 per month (Exhibit

proof, the plaintiff established that on

February 1, 1997 it billed Computer Associates for the February

rent and additional rent due under the lease in the total amount of

19515/97 6.

The case was tried to a court without a jury.

As part of its

Stewav Realty v. Computer Assoc. Index No.

t-hat 'he found the doors open and observed that workers or

th) he again visited and

inspected the premises. It appears he may have been accompanied on

that occasion by Richard Cohen (see Exhibit C). Rothenberg stated

Janus-ry and February, 1997, and that upon his

return in early March (probably March 4

Izl addition, he stated,

Associates' files stored in the building,

a janitorial staff to

he reviewed Computer

removed some to

company's headquarters and discarded others. All of this,

testified, was accomplished before February 28, 1997 and, by

first of March, Computer Associates had neither its employees

any contractors on the premises.

the

he

the

nor

Rothenberg testified that he had been vacationing in Florida

during the months of

c;,_rials and had engaged

clean the premises.

m-+e

l/6".

In his testimony Benz acknowledged receiving a copy of Exhibit

3 but stated that he did not discuss its contents with Rothenberg.

His discussion of the list was with other persons at Computer

Associates whom he did not identify. Benz testified that by early

January he had hired a carting company with dumpsters to remove

debris and unwanted

[week of] & repairs w/o

[Benz] says they

Will start removais

"ih]e

.zn6 had a later telephone conversation about the list,

Rothenberg added to Exhibit 3 his note that

Senz

punch-

list to

&ified that he sent a copy of the test

at which time "the place was still

loaded". Rothenberg

ago","two weeks

-_ting, Rothenberg noted that the "walk through" had

taken place

w-i3). In that

19515/97 7.

the premises requiring repairs, replacement or cleaning (Exhibit

Realtv v. Computer Assoc. Index No. Stewav

Associates was in

the building doing major repairs in the form of masonry, carpentry,

13th, each time.finding that

construction workers were present in the building, although he

initially stated he did not known who had hired them. In March and

thereafter, Rothenberg later testified, "Computer

build‘ingll. Rothenberg

nevertheless disagreed with the cross-examiner's propounded

question that the tenant had "vacated the premises as of February

28, 1997".

Rothenberg testified that he visited the building on five to

seven additional occasions up to March

"they had

block and sand and other materials in the

"[tlhey removed all of their stored possessions" but that

the stored items that they had in the premises", that

"had.emptied the premises of

all of

cross-

examination that Computer Associates

. With

respect to the same visit, Rothenberg testified on

II*

"1 found that they [Computer Associates]

had vacated the warehouse and left it broom clean *

bh, the plaintiff had not yet retained

contractors to correct any conditions observed by Rothenberg and/or

Cohen on that date. The workers or contractors seen on the

premises were those who had been hired by Computer Associates to

remedy the punch-list conditions. Nevertheless, Rothenberg on

direct examination testified that on that initial visit in March,

although he saw that the punch-list repairs reflected in Exhibit 3

had not been completed,

19515/978.

contractors were in the building, supplying building materials and

performing labor. By March

Stewav Realtv v. Computer Assoc. Index No.

tear", which is

lease period". The letter adds:

bathrooms, performed extensive landscaping work(including cutting down vines which had grown attached tothe building) and left the space in good condition.

* I have been advised that CA representativesthoroughly broom-cleaned the premises, scrubbed the_

that it had vacated the premises

term, leaving the space in "good

ordinary wear and

* m *

19), rejecting the assertion that it is

a holdover tenant and stating

prior to the end of the lease

order and condition, except for

"bound to occur over a ten year

have

12'" (Exhibit

321,665.32, that as of the abovedate has not been received."

Computer Associates' attorney responded to Cohen by letter

dated March

"A list of obvious repairs will follow.

"Please, also consider this letter as a demand for theFebruary rent payment of

$32,000.00. We expect this rent to bepaid in a timely fashion until such time as all repairsand restorations to the building have been completed.

6th as

follows (Exhibit C):

"Assuming that Computer Associates has vacated thepremises at 712 Stewart Ave, since no officialnotification was ever received, we inspected the buildingon March 4, 1997 and found that Computer Associates hasfailed to make any repairs and/or restorations to thepremises. The building is not rentable at this time inits present condition. Computer Associates failure toact has made them a holdover tenant at the monthlyholdover rental of

qth visit, Richard L. Cohen of

Cohen Associates wrote to Computer Associates on March

4), about which more will be said.

Following the initial March

Redhill stationery (Exhibit

"[t]he contractors of

Computer Associates".

On March 13, 1997 Rothenberg prepared a second punch-list on

I glazing, etc.", referring to

19515/97 9.

storefront


HVAC repairs and replacements and the roofing repairs,front door repairs and light fixture repairs and bulb

"We now find that your contractors are making masonry andcarpentry repairs in the building and that you neversurrendered the kevs. Are you intending to also make the

haVe had no response to our letter dated

the total cost

March 13,1997 concerning Computer Associates responsibilityregarding the above reference premises and the need foradditional repair and replacement work at the building.

($2,423.89) and adds:

"We

'HVAC repairs ($817.01) and inspection ($406.88) and

an additional proposal by Griffin Bros., Inc. for roof repairs.

The letter requests that Computer Associates pay

thereof

Redhill Construction and an invoice to Cohen Associates by Lane

Associates for

7), Cohen Associates

forwarded to the Computer Associates a proposal submitted to

* It is true the building was left.broom clean howeveryour company removed walls and did various other changeswhich had to be restored upon vacating the building."

By letter dated April 20, 1997 (Exhibit

'I*

Rothenberg's punch-list of the same date,

requested that the listed repairs and conditions be addressed, and

stated:

D) enclosed 13th (Exhibit

Lease."

Cohen Associates' letter to Computer Associates dated March

reguired under the Lease. If so, we will promptlyperform the appropriate work. If we fail to do so atthat time, your client may exercise the appropriateremedies available to the Landlord under the

\‘If your client is not satisfied with the extent ofthe clean-up work performed by CA, please provide me witha written list specifying in detail any items which itfeels should be repaired or restored and we will thenreview this list to see if those repairs or restorationsare

***

19515/97 10.

These actions are well beyond the requirements of theLease."


'v. West End Brewing Co., 145 AD 28,

aff'd 207 NY 696, the Third Department, in considering a lease

containing a covenant by the tenant to surrender the premises in

good condition at the expiration of the lease, necessary wear and

tear excepted, held that where the premises, suitable only for a

particular purpose, could no longer be used for that purpose, the

landlord had no claim for rents which would thereafter come due

during the extended period of the lease.

"The covenant to surrender the property in good conditionat the expiration of the lease manifestly can relate onlyto the physical condition of repair. The rule of damagesapplicable to such covenant precludes the idea that lossof rent is included in it. The rule, without variation,is that under such a covenant the damages are what it

clean" was acknowledged not only by Rothenberg's testimony but also

by Cohen Associates ’ letter (Exhibit D), a letter which Rothenberg

admitted he would have worded differently. The court's conclusion,

which necessarily militates against a holdover tenancy and any

responsibility of the tenant for rents claimed for the four-month

period March through June of 1997, is not without precedent.

In the 1911 case of Mucige

billed."

From the foregoing, the court concludes that the defendant

tenant did in fact vacate the leased premises on or before the

expiration of the lease term on February 28, 1997. The goods

Computer Associates had stored there had been removed by that date

and its employees were not on the premises or in possession of the

building. That the building had been vacated and left "broom

Stewav Realt 11.

replacements etc?? Please advise! In any case we expectto receive the holdover rent as

'The question of whether the mere leaving of propertyupon removal constitutes a continuance of the occupancyis usually one of fact. In considering this question offact, it seems to me that not only the value of the goodsleft must be considered, but the ratio of that value tothe amount of the rent of the premises is material.'

"There can be no doubt that there may be cases wherethe mere leaving of property on the premises after theexpiration of the lease would constitute a holding overand retention of possession of the premises as a matterof law. If a tenant for a definite period of a year oryears in possession of a store should leave his entirestock and fixtures in the building after the expiration

Waltzer (144 N. Y. Supp. 768) Mr. Justice Lehman wrote:

710). Merely leaving property on the leased premisesafter the expiration of the lease may or may not entitlethe landlord to treat the tenant as one holding over, andliable for another year's rent. In Broome-Clinton Co. v.

ITo entitle a landlord to claim an impliedlease for another year on account of a tenant's holdingover, the possession of the tenant must be an actualpossession of the property as against the ‘landlord, sothat the tenant would by virtue of his possession becomea trespasser.' (Myers v. Beakes Dairy Co., 132 App. Div.

"In order to give the landlord such right there mustbe an actual retention of possession of the premises bythe tenant.

(1927), the Second

Department considered the situation in which the defendant tenant

abandoned the property prior to the expiration of the five-year

lease, leaving behind certain equipment and facilities and leaving

the premises is a state of disrepair. The tenant, however, had

removed its own supplies and personal property prior to the lease

expiration. Based upon the equipment remaining, the plaintiff

landlord sought to treat the year-to-year tenant as a holdover for

a year beyond the lease expiration date and sought rent for that

additional year. The court held:

& Co., 222 AD 326 Canfield v. Harris

311.

In

[at. p.

19515/97 12.

would cost to put the premises in the required state ofrepair"


28, 1997 had removed its own stored goods and personal property

from the premises and left the building in broom-clean condition.

Such materials as were seen on the premises commencing four or five

.I' Here, as finder of the facts, this court

has found, as above stated, that Computer Associates by February

*

Canfield was affirmed, the Court of

Appeals holding that "whether defendant became liable to pay rent

for another year by leaving property on the premises presented a

question of fact *

'I.

On appeal (248 KY 541)

* ot'ner facts and circumstances surrounding thetransaction. *

-taking intoconsideration the nature of the property leased; theamount paid as rent, the value of the real property, thevalue O f the personal property left on the leasedpremises, the intent with which it was left, and all

"Not all cases, however, can be.decided as a matterof law. The question of whether the mere leaving by thetenant of property upon the leased premises after theexpiration of the lease makes him liable at the electionof the landlord, for another year's rent, is usually aquestion of fact, to be determined by

iic W. Orphan House v.Hoyle, 79 Misc. 301.).

1 (See, also, Trustees of L.

w-here it has been held as a matter of law that the mereleaving of a small amount of personal property of littlevalue upon the leased premises after the expiration ofthe lease did not entitle the landlord to treat thetenant as one in actual possession after the expirationof the lease and liable for rent for another year. Inthe case of Gibbons v. Dayton (4 Hun, 451) it was said:'The rooms were excessively dirty; but the litter andfilth, and worthless fragments and articles which tenantsare often accustomed to leave behind them, have neverbeen held to constitute a continuance of the tenancy.The landlord's remedy, if any, for such an injury isquite different from treating the tenancy as renewed byomission to carry everything away whether valuable ornot.

(Haynes v. Aldrich, 133 N. Y. 287.) There are also cases

lease{ that fact would doubtless require a courtto hold as a matter of law that he retained actualpossession of the premises, and, at the election of thelandlord, could be treated as a tenant for another year.

of the

19515/97 13.Cornouter Assoc. Index No. Realty v. Stewav

te&ms and covenants as those contained in the original instrument,

the language of Farrell and Mudge is applicable: the landlord's

NY2d 298, there holding that,

while a tenant remaining in possession on the expiration of a term

is a holdover with implied continuance of the tenancy on the same

York v. Penn. R.R. Co., 37 New

,decided City

of

1001-1002)."

The Court of Appeals also cited approvingly the language of the

Mudge decision, above.

Three years later, in 1975, the Court of Appeals

N. Y. Jur., Landlord and Tenant, 8486; Ann., 80ALR 2d 983, §634; 34

ea.],[ad Rasch, New York Landlord and Tenant Y 2d

1155; 2 2d, 243, 245, affd. 13 N

TobinV. Union News Co., 18 A D

"It is well established that when an action isbrought by a landlord for breach of a covenant to keep ingood repair after the expiration of the lease, the costof accomplishing what should have been done-measures thelessor's damages. (Appleton v. Marx, 191 N. Y. 81;

o'f damages to the City for repairs was upheld.

* * in good and sufficient repair

and condition." The lessee vacated the pier at the termination of

the lease, and the City brought an action against it for damages

for breach of the lessee's covenant to repair. The trial court's

award

* and the structures thereon *

"keep and maintain the said property

lo-

year term at an annual rent. That lease required the lessee, at

its own costs and expense, to

-pier), was for a 33'd Street

(1972),

presented facts in which the City leased two Brooklyn piers to

Farrell Lines, one of which (the

NT2d 76 ATew York, 30

19515/97 14.

days later were building materials needed for repairs undertaken by

the tenant.

Farrell Lines v. City of

Cornouter Assoc. Index No. Stewav Realtv v.

(1998), in which it was held

that where the tenant had failed to perform extensive restoration

work, including the removal of structural installations but had in

fact vacated the premises, the lessor was not entitled to "recover

lost rental income on the theory that defendant held over its

tenancy". Although the defendant in vacating "failed to remove

structural alterations and major installations, that failure did

not constitute a constructive holdover" [citing Arnot and Canfield,

supral.

AD2d 126

"[T]he law is well settled in New York

that a tenant who has vacated premises but breached covenants to

repair cannot be held liable for holdover rent while the repairs

are made and the premises unleased" [citations omitted].

To the same effect is the First Department decision in

Chemical Bank v. Stahl, 255

(1997), the Third Department held that a covenant by a tenant to

keep the building in good repair and condition, reasonable wear and

tear excepted, to remove its fixtures and alterations at the

expiration of the lease and to return the premises in broom-clean

condition, did not permit the landlord to seek damages in the form

of rents where the tenant had vacated the premises by the

expiration of the term.

AD2d 780&-not Realty Corp. v. New York Telephone Co., 245

19515/97 15.

damages are to be measured by the cost of repair where, as here,

the tenant has vacated the premises by the expiration date of the

lease.

In

Cornouter Assoc. Index No. Stewav Realtv v.

3" and the second page‘1 of n3 of 3".

Redhill stationery,the Exhibit.

that logo does not appear onIn addition, while the Exhibit as so marked consisted

of two pages, the first page is headed

2Although Marvin Rothenberg testified that Exhibit 4 for Id.was prepared on

Identification2. The list was

neither sent to nor discussed with Benz and was apparently prepared

"66th" of the lease instrument.

The December list was, in any event, supplanted by a second

two-page punch-list dated March 13, 1997, which, in that form, was

initially marked Exhibit 4 for

th provided the

plaintiff with a clear indication that the tenant intended to

vacate the building by the end of the term; notwithstanding

Rothenberg's testimony that he had no knowledge or notice whether

the lessee would opt to extend the term by two additional months as

provided by paragraph

3), two months prior to the lease expiration

date, was, as stated, prepared on the occasion of or in consequence

of his inspection of the premises with Edward Benz. The notation

on that list that Benz advised Rothenberg that Computer Associates

would begin "removals and repairs" by January 6

Redhill stationery) dated December

29, 1996 (Exhibit

late charges applicable

thereto, the extent of the plaintiff's restoration and repair costs

remains to be examined.

Rothenberg's punch-list (on

court's

determination that Computer Associates on March 1, 1997 became

neither a month-to-month nor a holdover tenant and that the

plaintiff landlord, Stewav Realty, may not maintain its claim for

rents after February 28, 1997, or for

19515/97 16.

In accordance with the foregoing, and this


‘\4/30",

Griffin Eros., Inc. had repaired roof leaks and billed the cost to

13rh

list, it was testified by Rothenberg that Computer Associates had

"completed" 11 of the 42 items listed. The list also included

three additional items of repair and notations that, as of

Redhill

stationery on which Rothenberg indicated by check marks the repair

items or conditions which had been completed (Exhibit 5). As of

the date of that list, which is more extensive than the March

left." Notations added to the roofing and HVAC

items indicate that roofing and HVAC contractors-were checking the

respective conditions.

On April 30, 1997, the two-page list (Exhibit 4) was updated

by Rothenberg to a 3-page list and a cover sheet on

* *

Normal wear and tear does not create the situation that Computer

Associates has

"[alpparently you are unaware of the fact that proper

repairs were not made at 712 Stewart Avenue, Garden City.

blowersN. On the same date that

appears on the exhibit, March 13, 1997, Richard L. Cohen of Cohen

Associates wrote to Computer Associates (Exhibit D, referred to

above), enclosing a copy of the two-page punch-list and stating in

part that

"check[ing] rooftop HVAC and

13th he was in the building on approximately five

occasions.

Two of the 31 items listed on Exhibit 4 (subsequently admitted

in evidence) refer to having a "roofer check roofing" and

4th

and March

19515/97 17.

by Rothenberg on the last of his visits to the premises in the

month of March of 1997, he having testified that between March


6'h and Rothenberg had already received a key to it.

Schwartz,.toured the premises. On

that date, he testified, Great Bay's subcontractor-glazier, Five

Star Fabricators "may have been" working. Rothenberg stated that

the building was "fairly clean" and that three specific repair

items on the punch-lists had been remedied while four were not.

Schwartz' s testimony as to his observations on that visit

presents a totally different picture, for he described extensive

damage and disrepair and floor areas strewn with trash, debris and

puddles of water. Significantly, Schwartz's testimony describes,

among other things, sheetrock damage and a damaged front door.

Rothenberg, on the other hand, earlier testified that the sheetrock

had been repaired. Moreover, the front door had been replaced

before May

6th, he and

his real estate attorney, Robert

St', the date of the Exhibit

12 letter, he had received a key to the repaired or replaced front

door and entryway from the tenant's contractor, Great Bay

Contracting, Inc., and that on the following day, May

. His undated list of required

repairs consisted of 24 conditions and, additionally, the roof and

HVAC repairs.

Rothenberg testified that on May

30t" (Exhibit 12)

19515/97 18.

Rothenberg and that Lane Associates had submitted a proposal to

Rothenberg for work on the HVAC system.

On Cohen Associates stationery, Rothenberg wrote to Computer

Associates on May 5, 1997 concerning his re-inspection of the

building on April

Realtv v. Computer Assoc. Index No. Stewav

Redhill submitted a bid to perform the remaining repairs for a

Redhill

Construction Corp. to Richard L. Cohen of Stewav Corporation,

6th. The earliest photographs are

dated May 15, 1997.

By unsigned letter dated May 22, 1997 from

4th thru May

6th. The May dates on the

faces of the photographs appear to have been recorded by the camera

Rothenberg used. Therefore, while the court, in the absence O f

evidence to the contrary, accepts so much of his testimony as

states that the photographs depict conditions seen in May, it is

equally clear that the same testimony establishes that many of the

depicted conditions are said to have existed at or about the time

of Rothenberg's initial visit to the building with Benz in December

of 1996 and with Richard Cohen in early March of 1997. The

countervailing consideration lies in Rothenberg's testimony that

Computer Associates' contractors were engaged in repair work during

the period from March

ited the premises in December of 1996 and

in early March. They show pictorially many of the conditions of

disrepair reflected in the March 13 and April 30 punch-lists

(Exhibits 4 and 5) and conditions at least comparable to those that

Rothenberg stated he observed on May

T-he photographs are

said to depict in May certain of the conditions he had observed

when he initially vis

13-32), he having testified that he took the

pictures on specified dates in May of 1997.

13-l to 13-29

inclusive, 13-31 and

19515/97 19.

On the plaintiff's case, 31 photographs were received in

evidence through Rothenberg's testimony (Exhibits


_-g's testimony was offered, 8 were said to have been "doneRothenbor

the 25 numbered items comprising Exhibit 8 to which

ma3:es him competent and qualified to testify to repair

costs in this case. The element of uncertainty about his testimony

arises in other respects.

Of

Redhill Construction Corp., a general

contractor. His experience, he testified, included estimating

construction costs on 400 or more such projects, all of which, the

court finds,

undispueed facts are that

Marvin Rothenberg is a civil engineer who for many years has been

in the business of developing and building industrial and

commercial buildings through

'I the

Rednill to himself as a

principal of the lessor corporation

$5,193.85 was provided by Marvin

Rothenberg. Although the defendant objected to his testimony,

principally on the ground that it was self-serving, that is, that

it was offered by the principal of

restoration costs ofHV_AC

$16,433.73.

The testimony relative to the repair costs of $9,633 and the

($406.88), an amount the tenant concedes it

owes. The grand total claimed is

HVAC system inspected

during the term of the lease, plaintiff's asserted damages are

increased by that cost

negiect or omission to have the

$16,026.85, which the plaintiff

seeks to recover of the defendant for those repairs to the building

which exceed "ordinary wear and tear". In addition, due to the

tenant's

($5,193.85), or a total of

HVAC system to working

order

19515/97 20.

total price of $9,633 . It is that sum, together with roof repairs

($1,200) and the cost of restoring the


4Rothenberg initially testified that Items 7 and 8 were doneby the tenant and later changed his testimony to say that the twoitems were "not done".

3Although Exhibit 8 lists 25 items of repair, the actualnumber is 26, since there are two items indented after Items Nos.1 and 15 and with allowance for the fact that Items 5 and 6 arecombined.

"done" which are also16), totalling $1,405, comprise repair costs

24), totalling $2,493, while made the subject of Rothenberg's

estimates of repair costs, are disallowed by the court. The best

evidence of such costs are receipted bills showing the amounts paid

by or in behalf of the landlord.

The remaining items of Exhibit 8 (Items 1, 3, 4, 14, 15 and

by.the landlord" (Items 2, 10, 11, 18, 21, 22, 23 and

25), the court

accepts Rothenberg's testimony as to the estimated costs of such

repairs. The total amount thereof is $5,735.

Those items set forth in Exhibit 8 which were stated to have

been ‘done

tenant4.

With regard to all repairs cost-estimated by the witness, the

calculation was based upon his knowledge of the cost of materials

and labor rates of $45.00 to $50.00 per hour for skilled and $20.00

to $25.00 per hour for unskilled workers, without the inclusion of

either overhead costs or profit. As to those repairs which had not

been made (Indented item under Item 1 and Items 5, 6, 7, 8, 9, 12,

13, Indented item under 15, and Items 17, 19, 20 and

"doneN or repaired by the

3. None, he

testified, were

I without specifying who had made the repair "done"

19515/97 21.

by the landlord", 12 were "not done" and 6 were simply described as


fourth" of the proposed removal and replacement cost of

the rooftop units, and "maybe one-half" of the cost of removing and

replacing interior heating units. The Lane proposal was marked as

Exhibit 14 for Identification, but the defendant's objection to its

admissibility was sustained.

Based upon the foregoing, the plaintiff is entitled to recover

from the defendant the following:

"[b]y being done I'm speaking of those things done by management

[Cohen Associates] or myself by the owner". Since the testimony in

respect of these 6 items represents a claim against the tenant for

reimbursement, the plaintiff should have substantiated that part of

its claim through the production of receipted invoices, not

estimates. The component sum of $1,405 is accordingly disallowed

for failure of proof.

The testimony of Rothenberg also included his "estimate" that

a 5-page proposal submitted by Lane Associates for the replacement

of the HVAC system required only repair, not -replacement. He

therefore testified that the cost of repairing the system would be

"maybe one

19971", Rothenberg responded that[May 22,

19515/97 22.

the subject of Rothenberg's estimates but without specific

attribution of the party or contractor that made the repair. When

initial reference was made to these six items of Exhibit 8, and in

response to questions about "which ones have been done since the

date of the document


"In the event of any action for rent or additional rentcommenced by the Landlord, the Tenant hereby agrees notto assert any offset or counter claim, but to bring aseparate action in its own behalf."

The court is unaware of any pre-trial relief sought by the

plaintiff to dismiss the counterclaim based upon the preclusive

language of paragraph 50. Nor was that issue raised during trial

or in the submission of post-trial memoranda except by the

"50th" of the August 18, 1987 lease specifically provides

as follows:

interest" is

set forth under the heading "FOR A SET OFF AND COUNTERCLAIM". Yet

paragraph

$32,000.00, plus appropriate

S30,507.20

Plaintiff's third cause of action ("COUNT THREE"), which

sounds in waste, seeks recovery of the same monetary sum as is

alleged in "COUNT TWO" and is predicated upon damage to the

"plaintiff's estate in reversion".

waste is subsumed in COUNT TWO and,

thereunder is or may be granted.

With respect to the defendant

Plaintiff's cause of action for

accordingly, no separate relief

tenant's Answer to the Amended

Complaint, it. is patent from the body of that pleading that the

tenant's claim against the landlord for "the return of its security

deposit in the amount of

5,735.oo

Total

HVAC survey and inspection cost 406.88

Repair costs allowed

1,200.00

1,500.00

Roof repair cost (Griffin Bros.)

$21,665.32

Late Charge for February 1997 rent

19515/97 23.

February 1997 rent


ali other claims between the parties (Tr.

364-365). In addition, both parties seek that interest be awarded,

plaintiff seeking pre-judgment interest on its claims from March 1,

1997 and defendant seeking an award of interest on its security

deposit of $32,000. The respective claims to interest are also

deferred by the court pending a further hearing as to both matters.

Entry of judgment in accordance with this decision shall also be

deferred pending such hearing.

fees! costs and disbursements. That issue, however,

with the consent of both parties, has been deferred pending the

court's decision as to

award of reasonable

attorneys'

enFender unnecessary additional litigation.

Both plaintiff and defendant seek an

court.by implied waiver of the

tenant's agreement to seek relief in a separate action. To hold

otherwise will

setoff and

counterclaim is properly before the

$1,492.80.

Notwithstanding the plain meaning of paragraph 50, this case

has proceeded through trial and through this Memorandum Decision on

the assumption by both parties that the pleading of the

$30,507.20, clearly that amount is

exceeded by the amount of the security deposit, even without

consideration of claimed interest on the deposit. Simple

subtraction, absent all other considerations, would indicate that

there is due the tenant from the landlord the sum of

dete&mination aforesaid that the

total sum due plaintiff is

19515/97 24.

plaintiff's acknowledgment that it holds the $32,000 security

deposit and would apply it against the sum due plaintiff.

By reason of this court's


J. S. C.

/

19515/97 25.

Counsel for the parties may contact the court to schedule a

mutually satisfactory hearing date.


memorandu m supreme court, nassau county x i.a.s. fart 2

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