NPS Engineers & Constructors, Inc. v. Underweiser

Order, Supreme Court, New York County (Louis Grossman, J.), entered February 17, 1987, which granted plaintiff’s motion for summary judgment and denied defendants’ cross motion for summary judgment, affirmed, without costs.

Plaintiff NPS Engineers and Constructors, Inc. (hereinafter NPS) was formerly the tenant of office space located at 200 Park Avenue, New York City. NPS rented the space pursuant to a written lease with the owner (hereinafter, the Overlease). On September 10, 1982, plaintiff entered into a written sublease for the premises with defendant Underweiser & Underweiser, a law firm. The sublease commenced October 1, 1982 and extended until September 22, 1983. Defendant Irwin P. Underweiser, a principal in the defendant firm, personally guaranteed the performance of all obligations of the firm *413under the sublease. Irwin Underweiser’s law practice involved the review of leases and subleases.

The sublease made no specific reference to escalation clauses contained in the Overlease. These clauses established the tenant’s liability for increases in operating costs incurred by the landlord (hereinafter escalation clauses). However, the sublease did contain the following provisions:

"8. The Sublease is subject to the Over-Lease. It is also subject to any agreement to which the Over-Lease is subject. You, the Undertenant, state that you have read and initialed the Over-Lease and will not violate it in any way * * *

"11. The provisions of the Over-Lease are part of this Sublease. All the provisions of the Over-Lease applying to the Overtenant are binding on you, the Undertenant * * *

"14. This sublease can be changed only by an agreement in writing signed by the parties to the Sublease.”

The owner billed NPS for escalation charges as authorized by the Overlease. Thereafter, NPS requested that defendant law firm pay: (1) $5,268, representing defendant’s pro rata share of the escalation charges for 1982; and (2) $16,361, representing full payment of the escalation charges covering a period in 1983 during which defendants alone occupied the premises.

Defendant law firm argued that it was not responsible for the escalation charges since representations were made by an employee of the brokerage firm which negotiated the sublease that the firm would not be responsible for any escalation charges in the Overlease. Defendant Underweiser further contends that he was never shown a copy of the Overlease prior to the execution of the sublease. Both these assertions have been denied by Robin Fuchs, the brokerage firm employee and a third-party defendant. No dispute exists as to the accuracy of the calculated charges. A further contention by defendants is that a triable issue of fact exists with regard to the fraud defense.

The motion court granted plaintiff summary judgment on the grounds that the escalation clauses of the Overlease were clearly incorporated by reference into the sublease.

The sublease explicitly states that the Overlease will be incorporated as part of the agreement between the parties. Together these documents comprise an integrated writing, the meaning of which is unambiguous and complete. Paragraph 8 requires that the "Undertenant” read the Overlease and not violate its terms. Paragraph 11 of the sublease makes all *414provisions of the Overlease applying to the "Overtenant” binding on the "Undertenant”, which must include the escalation provisions. The alleged oral representations are inadmissible as it is well settled that where an agreement is complete upon its face and the alleged parol evidence contradicts the writing, such evidence may not be received (see, Intercontinental Planning v Daystrom, Inc., 24 NY2d 372, 379 [1969]; Iorio v Superior Sound, 49 AD2d 1008 [4th Dept 1975]). The parol evidence rule also applies to lease agreements (Pollack v Green Constr. Corp., 40 AD2d 996 [2d Dept 1972], affd 32 NY2d 720 [1973]). The alleged existence of a triable issue of fact based on fraud is negated by: (1) defendants’ status as attorneys who represented themselves during the negotiations; (2) the absence of detailed pleadings in the fraud defense (see, CPLR 3016 [b]); and (3) the unlikelihood that defendants could establish the element of reasonable reliance on the alleged oral misrepresentations. Concur — Ross, Kassal, Rosenberger and Smith, JJ.