                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 12, 2015                   520692
________________________________

CITY OF TROY, NEW YORK,
                    Respondent,
      v
                                            MEMORANDUM AND ORDER
1776 SIXTH AVENUE, TROY, LLC,
                    Appellant.
________________________________


Calendar Date:   September 11, 2015

Before:   McCarthy, J.P., Egan Jr., Lynch and Clark, JJ.

                             __________


      Hodgson Russ, LLP, Albany (Richard L. Weisz of counsel),
for appellant.

      Pattison, Sampson, Ginsberg & Griffin, PC, Troy (Michael E.
Ginsberg of counsel), for respondent.

                             __________


Egan Jr., J.

      Appeal from an order of the Supreme Court (McGrath, J.),
entered May 19, 2014 in Rensselaer County, upon a decision of the
court in favor of plaintiff.

      At some point prior to 2008, plaintiff received significant
funds earmarked for, among other things, redevelopment of its
City Hall site and waterfront district in the City of Troy,
Rensselaer County. The project required plaintiff to vacate City
Hall and, to that end, plaintiff began searching for a site that
could serve as its temporary administrative headquarters.
Plaintiff ultimately selected a property identified by the
parties as the former Verizon building, which was owned by a
local developer and located at 1776 Sixth Avenue in Troy. To
facilitate this transaction, the developer tendered a letter of
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intent dated August 11, 2008 proposing a lease between plaintiff
(as the tenant) and defendant (as the landlord) for the subject
premises. Insofar as is relevant here, the letter of intent
provided that "[defendant] shall, at its sole expense, install an
elevator within the [p]remises." The letter of intent, which
expressly stated that it was "not a binding agreement between the
parties," further indicated that plaintiff and defendant would
"work together to identify a suitable location within the
[p]remises for [the] elevator installation."

      Shortly thereafter, plaintiff's City Council approved – as
amended – an ordinance authorizing plaintiff to enter into
negotiations with defendant for the premises. An addendum
thereto – denominated by the parties as the Brown amendment –
required plaintiff to provide defendant with "proposed layout
plans from [plaintiff's engineering department], including a
proposed location for the new elevator." The Brown amendment
also stated that the contemplated lease "shall not require
[plaintiff] to commence the monthly rental payments prior to the
completion of the [referenced] project."

      The parties entered into a three-year lease for the
premises in November 2008 with a stated rent commencement date of
January 1, 2009. Pursuant to section 9.01 of the lease,
defendant was responsible – "at its sole cost and expense" – for
maintaining and repairing the structural elements of the
building, including the required elevator, which was to be
installed by defendant by March 1, 2009. This section of the
lease also required defendant to replace any of the building's
heating, ventilation and air conditioning (hereinafter HVAC)
units that "in the opinion of a licensed engineer or contractor
[were] beyond repair." As reflected in section 26.01 of the
lease, a certified copy of the underlying ordinance and the
corresponding Brown amendment were attached as an exhibit
thereto.

      Due to various issues, including a delay in installing the
elevator and resolving related code violations, plaintiff was
unable to occupy the premises until December 2009. In the
interim, plaintiff tendered its rental payments but, in July
2009, began making such payments under protest and, in October
                              -3-                520692

2009, commenced this action seeking to recover, among other
things, the rental payments at issue. Following a nonjury trial,
Supreme Court, among other things, awarded plaintiff $331,321.60
for rental and tax payments for the months of March 2009 through
November 2009 (based upon defendant's breach of the covenant of
quiet enjoyment) and, further, awarded plaintiff $25,323.95 on
its breach of contract claim relative to one of the HVAC units
(based upon defendant’s refusal to replace such unit after it had
been deemed to be beyond repair). This appeal by defendant
ensued.

      We affirm. Defendant initially contends that the delay in
installing the elevator was occasioned, in large measure, by
plaintiff's alternative proposals for the elevator's location.
Hence, defendant argues, it cannot be held responsible for
failing to install the elevator by the required date.
Defendant's argument on this point is premised upon language
contained in the August 2008 letter of intent, which was attached
to and made a part of the amended ordinance authorizing plaintiff
to enter into negotiations for the lease. A certified copy of
the amended ordinance thereafter was referenced in and attached
to the parties' lease. According to defendant, both the letter
of intent and the Brown amendment compelled defendant to seek
plaintiff's approval as to the location of the elevator; further,
because the parties' lease referenced the ordinance and amendment
thereto, which in turn referenced the letter of intent, the
letter of intent must be deemed to be incorporated by reference
into the resulting lease.

      Even assuming, without deciding, that the letter of intent
and/or the amended ordinance may be said to be incorporated by
reference into the parties' lease, the fact remains that neither
of these documents in any way excuses defendant's failure to
install the elevator by March 1, 2009 as required by section 9.01
of the lease. Simply put, although the letter of intent indeed
contemplated that plaintiff and defendant would collaborate on
the location of the elevator, and the Brown amendment, in turn,
required plaintiff to tender "proposed layout plans" showing,
among other things, "a proposed location for the new elevator,"
nothing in either of those documents vested plaintiff with the
final decision-making authority for siting the elevator in
                              -4-                520692

question. Rather, the parties' lease unequivocally required
defendant to install the elevator by March 1, 2009 – a deadline
that was in no way conditioned or dependent upon plaintiff's
approval of the elevator's location.1 Under these circumstances,
Supreme Court did not err in concluding that plaintiff bore no
responsibility for specifying the final location for the
elevator.

      Having concluded that defendant failed to discharge its
obligations under the lease with respect to the installation of
the elevator, Supreme Court then turned to the issue of damages.
To that end, Supreme Court concluded that, inasmuch as plaintiff
paid rent without protest until July 2009, plaintiff waived its
breach of contract claim to that extent. Supreme Court
nonetheless awarded plaintiff damages in the amount of
$331,321.60, representing the rent and tax payments made by
plaintiff "for the months of March 2009 through November 2009
. . . on its cause of action for breach of quiet enjoyment,"
finding that plaintiff "was substantially and materially deprived
of the beneficial use and enjoyment of the premises from March 1,
2009 until September 16, 2009" due to defendant's failure to
install the elevator in a timely fashion and, further, that
plaintiff was constructively evicted from the premises from
September 2009 through December 2009 based upon various
outstanding code violations related thereto.

      Defendant, as so limited by its brief, contends only that
Supreme Court erred in awarding plaintiff a total of nine months
of rental payments – asserting that plaintiff waived its
entitlement to recover the March, April, May and June 2009 rental




    1
        To the extent that defendant points to certain testimony
in the record that suggests that at least one of plaintiff's
representatives believed that plaintiff had such authority, we
need note only that parole evidence is not admissible to create
an ambiguity where one does not otherwise exist (see Bank of Am.,
N.A. v Lang Indus., Inc., 127 AD3d 1457, 1458 [2015]).
                               -5-                520692

payments by making such payments without protest.2 We disagree.
The case law makes clear that a tenant's "payment of all required
rent is a condition precedent to the maintenance of . . . an
action" for breach of the covenant of quiet enjoyment (Balzano v
Lublin, 162 AD2d 252, 253 [1990]; see Leider v 80 Williams St.
Co., 22 AD2d 952, 953 [1964]; cf. Parker v Marglin, 56 AD3d 374,
374 [2008]; see also Dave Herstein Co. v Columbia Pictures Corp.,
4 NY2d 117, 120-122 [1958]; 85 John St. Partnership v Kaye Ins.
Assoc., 261 AD2d 104, 105 [1999]). Hence, plaintiff's payment of
rent during the months in question cannot be deemed to be a
waiver of its rights under this portion of the lease.

      Finally, we cannot say that Supreme Court erred in awarding
plaintiff $25,323.95 in damages on its breach of contract claim
relative to one of the two rooftop HVAC units. In this regard,
section 9.01 of the lease required defendant to replace HVAC
units that "in the opinion of a licensed engineer or contractor
[were] beyond repair." Here, the engineer who inspected the
building's HVAC system concluded, insofar as is relevant here,
that one of the two rooftop condensing units was "at the end of
its useful life and ha[d] substantially deteriorated beyond
restoration or repair possibilities and [would] require
replacement." Faced with this report, defendant reached out to
two HVAC contractors, both of whom agreed that the unit in
question needed to be replaced. Despite this unanimous opinion,
defendant refused to replace the unit; as a result, plaintiff
expended $25,323.95 to make the unit in question operational.3
Given defendant's clear obligations under this portion of the
parties' lease, Supreme Court properly awarded plaintiff damages
for the sums it expended in this regard. Defendant's remaining
contentions, to the extent not specifically addressed, have been


     2
        As defendant has not briefed any other challenges to this
aspect of the damages award, we deem any issues relative to the
award's amount and/or composition to be abandoned.
     3
        The trial testimony revealed that there were ongoing
problems with the air conditioning at the premises throughout the
term of plaintiff's occupancy, resulting in numerous complaints
by plaintiff's employees.
                              -6-                  520692

examined and found to be lacking in merit.

     McCarthy, J.P., Lynch and Clark, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
