Cortlandt Cafeteria v. Cortlandt & Dey Sts. Corp.

302 N.Y. 409 (1951)

Cortlandt Cafeteria, Inc., et al., Respondents, v. Cortlandt and Dey Streets Corporation, Appellant. In the Matter of J. A. Kennedy Realty Corporation, Appellant. C. Ludwig Baumann & Company, Respondent.

Court of Appeals of the State of New York.

Argued April 2, 1951.

Decided April 13, 1951

Elmer J. Hoare and Alex L. Caccia, Jr., for appellant in Cortlandt Cafeteria case.

Eugene J. Morris, Alfred J. Callahan and Eli Vigliano for Cortlandt Cafeteria, Inc., respondent in Cortland Cafeteria case.

Henry L. Schaefer and Abbie Goldstein for Chas. W. Wolf, Inc., respondent in Cortlandt Cafeteria case.

Patrick J. Mahoney and Thomas J. Foley for appellant in Kennedy Realty Corporation case.

Edward S. Greenbaum, Jerome Handler and Herbert Feiler for respondent in Kennedy Realty Corporation case.

Jay Leo Rothschild, amicus curiæ, in support of respondents' position.

LOUGHRAN, Ch. J., LEWIS, CONWAY, DESMOND, DYE, FULD and FROESSEL, JJ.. concur.

*412Per Curiam.

The statutory rent to which a landlord is entitled, and to which a tenant is subject, under a lease providing for a variable rental is controlled by section 14 of the Commercial Rent Law (L. 1945, ch. 3, as amd.) and by its prototype, section 13, in the Business Rent Law (L. 1945, ch. 314, as amd.), and not by section 4. Upon the expiration of such a lease which prescribes, in addition to the percentage, a fixed, basic or minimum rent the percentage portion of the rent is to continue without change and the fixed or minimum rent is to be increased by 15%. (See Matter of 500 Fifth Ave., Inc. [Wise Shoe Co.], 300 N.Y. 491, affg. 274 App. Div. 241; 500 Fifth Ave., Inc., v. Dalsheim, 300 N.Y. 587.) The "comparable" rent provision of the section expressly limited in its operation to a lease calling for a rental on a graduated scale (see Matter of Harvey Holding Corp. [Satter], 297 N.Y. 113, 115) does not apply to a variable rent lease.

In each of the cases now under consideration, therefore, the landlord is entitled only to the stipulated fixed minimum rent, plus 15% thereof, plus the percentage specified in the lease.

In the Cortlandt Cafeteria case, the judgment of the Appellate Division should be affirmed, without costs; in the Kennedy Realty Corporation case, the order should be affirmed, with costs.

In the Cortlandt Cafeteria case: judgment affirmed.

In the Kennedy Realty Corporation case: order affirmed.