Sonny Boy Realty, Inc. v. City of New York

Buckley, P.J., and Tom, J.,

dissent in part in a memorandum

by Buckley, PJ., as follows: I would find that the motion court correctly held that neither article 13 of the lease nor the Mayor’s resolution authorizing the lease placed any kind of affirmative obligation on the tenant to make structural repairs necessitated by its alleged negligence, but merely relieved the landlord from having to make such repairs. No basis exists for reading anything into these documents not expressly stated therein (see City of New York v P.A. Bldg. Co., 284 AD2d 225 [2001]). The landlord’s claim that the tenant was under a duty to act with due care and prevent waste sounds in tort (see Watner v P & C Food Mkts., 138 AD2d 959, 960 [1988]), and may not be entertained, since the tenant, the City of New York, was never served with a notice of claim.