In the Matter of Bombay Realty
Corporation,
Respondent,
v.
Magna Carta, Inc.,
Respondent,
and Cellular 2000 and Beyond,
LLC,
Appellant.
2003 NY Int. 55
The issue here is the method of calculating additional rent pursuant to a sublease agreement.
Bombay Realty Corporation owns property located at 201
Wolf Road, Town of Colonie. In 1975, it leased the property to
Colonie Seafood Shoppe, Inc. for a period of 20 years. In 1991,
Colonie subleased the property to Magna Carta, Inc. for a period
of approximately 16 years. From the initial 1975 lease until
March 1998, a restaurant known as Long John Silver's was
Cellular is a retail communications store that sells
cellular telephones, pagers, chargers and related accessories.
When purchasing a cellular telephone, a customer can sign a
contract with Southwestern Bell Mobile Services (now known as
Cingular Wireless) for a variety of cellular phone service plans.
From that point on, Southwestern bills the customer directly,
receives all of the revenues generated by those customers for
phone service, and pays Cellular based upon a commission
schedule, as well as a residual fee.[1]
In calculating its gross sales for the percentage portion of the lease, Cellular included only its earned commissions, and not the full amount received by Southwestern. In July 1999, the end of its first fiscal year, Cellular submitted a statement to Bombay as required by the lease so that gross sales could be determined. Bombay rejected the statement, arguing that it was inaccurate because it reported only Cellular's commissions instead of the full value of the contracts customers signed with Southwestern. Bombay proceeded to make several written demands for the additional information from Cellular. In December 1999, after Cellular failed to provide the requested documentation, Bombay brought a RPAPL article 7 action in Supreme Court against Magna Carta and Cellular seeking the additional amount of the rent required if gross sales were interpreted to mean sales of Southwestern services to customers signed by Cellular.
Supreme Court dismissed the portion of the petition in
which Bombay sought possession of the premises. The court stated
that it could not determine from the papers whether Cellular had
complied with the terms of the lease as to its reporting
requirements and ordered Cellular to turn over the documentation
requested by Bombay. When Cellular furnished only documentation
of its commissions, Supreme Court granted summary judgment in
The Appellate Division affirmed, stating: "to base (Cellular's) added rent on the actual profit derived from the sale of cellular telephone service plans rather than on the gross amount of the sales would constitute a substantial deviation from the compensation methodology of the original lease and have the effect of depriving petitioner of its reasonably expected return on its investment." We granted leave and now reverse.
The core of the issue before us is whether the value of the service contracts is properly included in the lessee's annual gross sales. We hold that the term gross sales includes only the income payable to Cellular and does not include income resulting from plans entered into by a customer and payable to Southwestern, a third party.
All parts of a contract must be read in harmony to determine its meaning ( Ronnen v Ajax Elec. Corp., , 88 NY2d 582 587, 589 [1996]). One portion of the lease should not be read so as to negate another portion. In order to determine the meaning of income, we need to read the entire lease.
Reading the lease as a whole, the contractual term
gross sales must be tied to the gross income actually received
by the lessee, Cellular. The sublease provides that the
additional rent is 5% of the lessee's annual gross sales. It is
According to the lease, at the end of each fiscal year,
the lessee must report the gross sales, as attested to by an
officer of the lessee's company, to the lessor. The lessor shall
have access to the lessee's records at all reasonable times in
order to verify the lessee's reported information.[2]
Only the
outside third party, Southwestern, which administers the cellular
telephone plans, would have access to the "income" earned on a
particular account.
Accordingly, the order of the Appellate Division should be reversed, with costs, respondent's motion for summary judgment denied and the cross motion for summary judgment by appellant Cellular 2000 and Beyond, LLC granted.
1 Cellular is paid a sign-up commission of $300. Cellular also receives a residual fee based upon the air time and monthly access charges attributable to the subscriber activated by Cellular.
2 Specifically, the original lease defined "Annual gross
sales" as "income generated by the lessee during the lessee's
fiscal year." The lease also provided: "[t]he lessee shall at
the end of each of its fiscal years provide the lessor with
evidence of its gross sales in the form of a report attested to
by an officer of the corporation. The lessor shall have at all
reasonable times access to the lessee's records and accounts to
be kept by the lessee in a businesslike manner at its Wichita,
Kansas, offices."