Creative Ways, Inc. v. Image Mix, Inc.

Orders, Supreme Court, New York County (Beverly Cohen, J.), entered on April 28, 1993 and on or about December 13, 1993, respectively, which, in an action by plaintiff subtenant for, inter alia, a declaration that a reduction in defendant sublessor’s rent entitled it to a proportional reduction in its own rent, inter alia, granted defendant summary judgment dismissing the complaint but dismissed its claim for attorney’s fees, unanimously affirmed, with costs. The IAS Court correctly applied the parol evidence rule to preclude evidence of an oral agreement that allegedly modified the rent specified in the parties’ sublease, which nowhere provides for a reduction in rent tied to any prospective or potential reduction in rent in the overlease. In the absence of fraud or mutual mistake, parol evidence must be excluded if it contradicts or modifies the terms of an integrated writing (Marine Midland Bank v Thurlow, 53 NY2d 381, 387). The IAS Court also correctly rejected defendant’s claim for attorney’s fees, since the overlease, which defendant claims was incorporated into the sublease by reference, did not make an action by the tenant to establish the amount of rent due a basis for the landlord’s recovery of attorney’s fees (Hall & Co. v Orient Overseas Assocs., 84 AD2d 338, affd 56 NY2d 965). Concur—Ellerin, J. P., Ross, Williams and Tom, JJ.