Latman v. Kalmor Builders, Inc.

In an action to recover excess rent payments for the period from June 1,1952, to May 31, 1953, under the Business Rent Law (L. 1945, ch. 314, as amd. by L. 1949, ch. 535), for damages for fraud, and for a cancellation or reformation of an agreement to modify the terms of a lease, defendant moved for judgment on the pleadings as to each of the three causes of action alleged in the complaint. Special Term granted the motion as to the second and third causes of action but denied the motion as to the first cause of action. Thereafter, Special Term granted defendant’s motion for reargument but adhered to the original decision. Defendant appeals from so much of the orders as denies its motion to dismiss the first cause of action and plaintiff appeals from so much of said orders as grants the motion to dismiss the second and third causes of action. Order on reargument modified on the law by striking therefrom the first ordering paragraph and by striking from the second ordering paragraph the words “and upon such a reargument, the original decision is adhered to ” and by substituting therefor a provision that the motion for judgment on the pleadings is granted in all respects. As so modified, order affirmed, with $10 costs and disbursements to defendant-appellant. Appeal from original order dismissed, without costs. The original lease was to expire by its terms on March 31, 1951. By agreement of the parties, it expired on December 31, 1949. We do not read the statute (Business Rent Law, § 13; L. 1949, ch. 535) as requiring an agreement fixing the rent subsequent to the expiration date to be made after such date. Whether the agreement could have been attacked as to the rent paid between December 31, 1949, and March 31, 1951, is not before us, but the agreement is valid insofar as it fixes the rent claimed in the first cause of action to have been illegally collected. Nolan, P. J., Wenzel, MacCrate, Murphy and Ughetta, JJ., concur.