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C & E 608 Fifth Ave. Holding, Inc. v. Swiss Ctr., Inc.

Supreme Court of New York, Appellate Division, First Department

September 9, 2008, Decided; September 9, 2008, Entered

4022N, 100245/06

Opinion

 [**656]  [*587]   Order, Supreme Court, New York County (Joan A. Madden, J.), entered July 18, 2006, which, to the extent appealed from as limited by the briefs, denied defendant's cross motion pursuant to CPLR 3211 (a) (1) and (7) to dismiss the complaint, affirmed, with costs.

The express language of the lease did not give defendant landlord unfettered discretion to ignore the tenant's requests for approval of signage. And if the landlord's conduct as alleged is eventually established, it may also demonstrate a violation of the implied covenant of good faith and fair dealing (see Just-Irv Sales v Air-Tite Bus. Ctr., 237 AD2d 793, 655 NYS2d 131 [1997]). Concur--Saxe, J.P., Nardelli and Acosta, JJ.

Concur by: MOSKOWITZ

Concur

Moskowitz and DeGrasse, JJ., concur in a separate memorandum by Moskowitz, J., as follows: Because the lease at issue does not by its express terms require a response from the landlord, I cannot agree  [***2] with the majority that there is a breach of a lease provision. However, I agree that plaintiff has stated a cause of action for breach of the covenant of good faith and fair dealing. Therefore, I concur.

Defendant Swiss Center, Inc. is the landlord of 608 Fifth Avenue in Manhattan. Plaintiff Chalano & Co. leases ground level retail space in the premises pursuant to a standard form store lease. This litigation involves a sign that plaintiff erected in the upper windows of the leased premises.

Article 41 of the lease governs plaintiff's use of signage on the interior and exterior of the premises and states in relevant part:

 [*588]  "Except as hereinafter provided in this article, TENANT shall not erect, place, or maintain any sign, advertisement or notice visible from the exterior of the demised premises except on the window glass and the entrance door or doors of the demised premises. Any such sign, advertisement, or notice shall be of such size, color, content and style as LANDLORD shall prior to the erection or placing thereof have approved in writing . . .

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54 A.D.3d 587 *; 863 N.Y.S.2d 655 **; 2008 N.Y. App. Div. LEXIS 8280 ***; 2008 NY Slip Op 6743 ****

 [****1]  C & E 608 Fifth Avenue Holding, Inc., Respondent, v Swiss Center, Inc., Appellant.

CORE TERMS

lease, landlord, exterior, erect, interior, signs, fair dealing, good faith, premises, demised premises, windows, notice, express language, written approval, breach of lease, first paragraph, express terms, advertisement, withholding, unfettered, covenant, requests, delayed, signage, symbol, upper, door