Tibaldi v. Custodian Realty Co. , 330 N.Y.S.2d 805 ( 1972 )

Order, Supreme Court, New York County, entered on January 20, 1972, granting plaintiffs’ motion for a preliminary injunction, unanimously modified, on the law and on the facts, so as to delete therefrom the provision for supply of hot water at times other than when heat is supplied, and otherwise affirmed, without costs and without disbursements. Plaintiffs are appellants’ sublessees in possession of a substantial portion of an office building under a long-term lease. Special Term erred in concluding that the lease covenant to supply heat should be construed to require the supply of hot water as well. Since the building has no facilities for providing hot water separate from heat there is no physical way for the landlord to provide hot water, during the months when heat is not provided. The lease does not obligate the landlord to provide hot water. The covenant to supply heat cannot be said to compel a finding that hot water must also be supplied at all other times. Concur — Markewieh, J. P., Nunez, Kupferman, Murphy and Eager, JJ.