Jack LaLanne Biltmore Health Spa, Inc. v. Builtland Partners

Order, Supreme Court, New York County (Ira Gammerman, J.), entered February 16, 1983, which, inter alia, (1) denied plaintiff’s motion for partial summary judgment; (2) granted defendants’ cross motion for partial summary judgment to dismiss so much of plaintiff’s complaint as seeks a declaratory judgment; and, (3) decreed that the defendants’ notice of termination of the lease is valid and enforceable, affirmed, without costs. Pursuant to a 21-year lease executed in 1972, plaintiff tenant operated a health spa and a swimming pool in the cellar and subcellar of the Biltmore Hotel (Biltmore), located at 43rd Street and Madison Avenue, Manhattan. In 1978 Builtland Partners (Builtland) purchased the Biltmore and became plaintiff’s landlord. Article 61 of plaintiff’s lease reads in pertinent part: “If Landlord shall enter into a bona fide arrangement to demolish * * * the building of which the demised premises are a part, Landlord shall have the right to terminate this lease by giving Tenant 18 months’ prior written notice, and, in such event, the term hereof shall terminate on the date contained in such notice as if such date were the original expiration date”. By registered letter, dated October 23,1981, landlord Built-land notified plaintiff that it was exercising its option to terminate this lease, in accordance with the terms of article 61, quoted supra. Builtland had decided to demolish the Biltmore and replace it with a commercial office building. The other defendant Lehrer/McGovem, Inc. is the construction manager for the project. After receipt and rejection of Builtland’s notice, plaintiff commenced action against defendants for, inter alia, a declaratory judgment that their lease is still in effect because the alteration of the Biltmore does not constitute a demolition within the meaning of the subject article. Subsequent to the joinder of issue, plaintiff moved and defendants cross-moved for partial summary judgment concerning the declaratory judgment portion of the complaint. Our examination of this record reveals that the Biltmore Hotel no longer exists. In fact, all that remains of the “old Biltmore” is most of the steel skeleton and two structural slabs above Grand Central Station; while everything else such as the exterior masonry, internal walls, floors, ceilings, elevators, fixtures, electrical and plumbing conduits has been removed. Incidentally, in view of the fact that Grand Central Terminal has been designated a landmark under New York City’s Landmarks Preservation Law (Administrative Code of City of New York, ch 8-A; see Penn Cent. Transp. Co. v New York City, 438 US 104, 136-138), certain parts of the Biltmore that pertained to that landmark were required to be preserved. As we unanimously said in Friedman v Ontario Holding Corp. (279 App Div 23, 25, affd 304 NY 625): “Practically speaking this building was demolished * * * The mere circumstance that part of the former structure could be salvaged or was useable * * * does not change the result.” We disagree with the dissent’s contention that Friedman v Ontario (supra) is distinguishable in that it interpreted a statute. Clearly this court, in Friedman, established the principle that a commonsense meaning of “demolish” is not confined to razing the building. For all practical purposes the Biltmore was demolished, as that term is defined in article 61 of the lease between the parties. We agree with Special Term that plaintiff’s motion should be denied and defendants’ cross motion should be granted. Concur — Ross, Carro, Asch and Bloom, JJ.