2015 NY Slip Op 50089

Citation: 2015 NY Slip Op 50089
Jurisdiction: New York (state)
Source: Official source
Original Source: https://www.nycourts.gov/reporter/3dseries/2015/2015_50089.htm ↗

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the tenant or receipt by the landlord of any lesser amount than the amount stipulated to be
paid hereunder shall be deemed other than on account of the earlier stipulated rent or
additional rent nor shall any endorsement or statement on any check or letter be deemed
in accord and satisfaction, and landlord may accept any check or payment without any
prejudice to landlord's rights to recover the balance due or to pursue any other remedy
available to landlord." Stated another way, the landlord's acceptance of the lower rent
does not waive the landlord's right to collect the additional sum the landlord claims due
and owing in this proceeding.

A review of the above language leads this Court to no other conclusion than
that the intentions of the parties was that the fixed rent or the initial rent would be
$225,000.00 for the first year and for each year thereafter, the fixed rent would be
increased in accordance with the consumer price index as set forth in article 24 of the
lease. The lease does not make any reference whatsoever to the "chained" CPI or any of
the other theories that have been proffered by the Respondent. The Court, hence, finds
that the Petitioners are entitled to the rent increases as stated in the lease.

In addition, the Respondent argues that the calculation by the C.P.A. Bandini
is incorrect. The Respondent's contentions are also without merit. The Court has
reviewed the calculations by the C.P.A. as admitted into evidence as Petitioner's Exhibit
"7" and finds that the calculations are arithmetically accurate and are in accordance with
the method set forth in the lease agreement between the parties.

Notwithstanding the fact that the current landlord, then tenant, did not