Esposito v. Brien , 16 A.D.2d 751 ( 1962 )

Order of Appellate Term, entered on November 17, 1960, affirming final order in favor of landlord in summary proceeding in the Municipal Court, unanimously reversed, on the law, and final order directed to be entered in favor of tenant dismissing the petition, without costs. The “ escalator clause ” in the lease provided: “ The tenant further agrees to pay as additional rent such amount as may be fixed by order of the Temporary State Housing Rent Commission for increased services or equipment, pursuant to Section 33(1) of the Rent and Eviction Regulations.” The- Rent Administrator never approved a rent increase for increased services or equipment with respect to an apartment subject to an unexpired valid lease. Consequently, the provision of the lease providing for escalation did not become operative. An unconditional increase authorized by the Rent Administrator might have invoked the operation of the clause. Settle order on notice. Concur—Botein, P. J., Breitel, Rabin, Valente and Bergan, JJ.