Jamaica Savings Bank v. Carsons Jamaica, Inc. , 18 Misc. 2d 877 ( 1959 )

Peter M. Daly, J.

Motion by plaintiffs for summary judgment. Cross motion by defendant for an order dismissing the complaint for failure to state a cause of action.

The complaint alleges that some of the plaintiffs leased to the defendant certain premises in Jamaica, that defendant is still in possession of said premises, that the lease contained a clause requiring the defendant to pay all taxes, etc., levied upon the premises by any governmental or municipal authority, in default of which the landlord had the option to pay them and add the amount thereof with interest to the next month’s rent, that on April 1, 1959, the City of New York levied a real property tax on the premises in the amount of $10,557.60, that defendant has failed and refused to pay the same, that on April 30, 1959, the plaintiff lessors conveyed the property to the plaintiff Jamaica Savings Bank, and that the interest of the plaintiffs is burdened with the lien of said taxes and they will be compelled fco discharge the same if defendant fails to comply with the provisions of the lease requiring it to pay said taxes. The complaint further alleges that plaintiffs have complied with all the terms of the lease on their part.

In opposition to plaintiffs’ motion for summary judgment defendant does not deny its obligation to pay the taxes. In its memorandum of law, on page 8, it states that the lease ‘ ‘ sets out in clear language the duty of the tenant to pay real estate taxes.” Nor does it claim to have paid them. It argues that the landlord’s sole remedy is to pay the taxes and add them to the next month’s rent and that since plaintiffs have not paid the taxes the complaint is insufficient.

Defendant’s argument is without merit. While the lease gave the landlord the option to pay the taxes (the lease provides that “ the landlord may pay” them; emphasis supplied) it placed the obligation to pay them on defendant. Upon its failure to do so defendant breached the contract and plaintiffs may sue for such breach. It is apparent that defendant has no defense to this action. Its motion to dismiss the complaint is denied and plaintiffs’ motion for summary judgment is granted.

Submit order.