30-88 Steinway Street, Inc. v. H. C. Bohack Co.

In a holdover summary proceeding to recover possession of real property, the landlord appeals, by permission, from an order of the Appellate Term of the Supreme Court, Second and Eleventh Judicial Districts, dated January 13,1972, which (1) reversed a final judgment of the Civil Court of the City of New York, Queens County, entered March 15, 1971, in favor of. the landlord, after a nonjury trial, and (2) dismissed the petition. Order of the Appellate Term reversed, on the law and the facts, without costs, and judgment of the Civil Court reinstated. The stay in the judgment is extended to October 1, 1973. The question at bar is the interpretation of the use clause 578 in a supermarket lease. We hold that a retail store whose sales volume consists overwhelmingly of what the trade terms “soft goods”- — men’s and boys’ shirts, pants, socks and shoes — may not be termed a supermarket in the commonly accepted use of that word and is in violation of the lease terms, which prescribe “supermarket” use. Appellant stipulated at the trial that respondent Robbins shall have an opportunity to conform its operation to the lease terms. The trial court granted a stay until August 31, 1971, upon condition that the premises be so converted and upon further condition that payment for use and occupancy during the period of the stay be made at the same rate as provided in the lease. Accordingly, we extend that stay until October 1, 1973 under the same terms and conditions as originally set forth. Shapiro, Acting P. J., Gulotta, Christ, Brennan and Benjamin, JJ., concur. [65 Misc 2d 1076.]