1100 Avenue of the Americas Associates v. Bryant Imports, Inc.

—Order of the Appellate Term of the Supreme Court, First Department, entered June 9,1994, which affirmed an order and judgment of the Civil Court, New York County (Louise Gruner-Gans, J.), both entered on or about May 29, 1992, inter alia, disallowing petitioner-landlord’s claim for additional rent under the real estate tax escalation clause of the subject lease, unanimously affirmed, without costs.

Although the tax escalation clause does not explicitly state whether actual payment of the property tax by the landlord is a prerequisite to the imposition of additional rent on the tenant, we agree with Appellate Term that to require the tenant to pay additional rent where the obligation to pay the tax has *102been shifted from the landlord to a third party would result in the landlord "reap[ing] a windfall not envisioned by the parties’ agreement” (S.B.S Assocs. v Weissman-Heller, Inc., 190 AD2d 529, 530; see, Wendel Found. v Moredall Realty, 282 NY 239).

Petitioner-landlord’s claim that it is respondent-tenant which is realizing a windfall inasmuch as the landlord has accepted a reduced net lease rent in consideration of HBO paying the tax directly is unsupported by any evidence in the record. Concur— Sullivan, J. P., Milonas, Rubin, Williams and Andrias, JJ. [See, 161 Misc 2d 582.]