fine." In support, Tenant submits the email string as Tenant's exhibit 7. Tenant argues in its
memorandum of law that Landlord waived any breach by expressly agreeing in the email that
Tenant need not remove everything from the premises.
Landlord does not make any argument with respect to its fourth counterclaim, and the court
finds that it should be dismissed. Paragraph 3 of the lease provides the following with respect to
fixtures:
"All fixtures and all paneling, partitions, railings and like installations, installed in
the premises at any time, either by Tenant or by Owner in Tenant's behalf, shall, upon
installation, become the property of Owner and shall remain upon and be surrendered with the
demised premises unless Owner, by notice to Tenant no later than twenty days prior to the date
fixed as the termination of this lease, elects to relinquish Owner's right thereto and to have them
removed by Tenant, in which event the same shall be removed from the premises by Tenant prior
to the expiration of the lease, at Tenant's expense."
Here, there is no
evidence that Landlord gave notice to Tenant to remove any fixture, improvement or custom fit
prior to vacating the premises. Rather, the evidence shows that Landlord allowed Tenant to
remove everything, except the wall panels and cabinets. Accordingly, Landlord is not entitled to
recover damages for the costs incurred in removing any fixtures, improvements or custom
fits.
6. Tenant is Entitled to Summary Judgment Dismissing Part of the Fifth
Counterclaim
Landlord's fifth counterclaim is dismissed to the extent it seeks declaratory relief, as the Civil
Court cannot grant such relief. The request for damages, costs, expenses and attorneys' fees