1100 AV., THE AMERICAS v. BRYANT IMPORTS

Although the tax escalation clause does not explicitly state whether actual payment of the property tax by the landlord is a prerequisite to the imposition of additional rent on the tenant, we agree with Appellate Term that to require the tenant to pay additional rent where the obligation to pay the tax has been shifted from the landlord to a third party would result in the landlord "reap[ing] a windfall not envisioned by the parties' agreement" ( S.B.S. Assocs. v Weissman-Heller, Inc., 190 AD2d 529, 530; see, Wendel Found, v Moredall Realty, 282 NY 239).

Petitioner-landlord's claim that it is respondent-tenant which is realizing a windfall inasmuch as the landlord has accepted a reduced net lease rent in consideration of HBO paying the tax directly is unsupported by any evidence in the record.

[ See, 161 Misc 2d 582.]