Motion for summary judgment of possession.
Plaintiffs, landlords, seek summary judgment against defendant tenant Seaboard Supply Co., and sub-tenant Joseph Sochor, for possession of the leased premises.
"* * * the tenant shall, in case of fire, give immediate notice thereof to the landlord who shall thereupon cause the damage to be repaired forthwith; but if the premises be so damaged that the landlord shall decide to rebuild, the term shall cease and the accrued rent be paid up to the time of the fire."
The affidavits show without dispute that the premises leased by plaintiffs to defendant Seaboard Supply Co. consisted, at the date of the lease, of a tract of land in Irvington upon which there were three frame buildings which adjoined one another with a total floor space of approximately 9,000 square feet, a shed with about 500 square feet, and a one-story concrete building, which defendants' memorandum says contained 2,600 square feet. The rent is $500 per month.
The concrete building and a portion of one of the frame buildings were sublet by defendant Seaboard Supply Co. to the defendant Joseph Sochor with the consent of the plaintiffs, subject to the terms of the principal lease. The balance of the premises, within and without the buildings, was occupied by defendant for the sale and distribution of roofing and building materials on December 24, 1953, when the frame buildings were damaged by fire. Plaintiffs gave defendants notice of their intention to rebuild, and of the consequent
termination of the lease. Defendants failed to vacate, and this action was begun.
Plaintiffs have filed an affidavit of Edward G. Mrozek, Superintendent of the Building Department of Irvington, in which he says:
"5. The buildings fronting on South 20th Street are entirely of frame construction. They have been so badly damaged by fire that they must be demolished, and they cannot be rebuilt unless they conform with the requirements of Section 104, paragraph 1 of the Building Code of the Town of Irvington. The Building Code of the Town of Irvington requires that only brick or concrete block buildings be erected in the zone, which is an industrial zone, where the above property is located.
6. The zoning ordinance of the Town of Irvington, Section 104, entitled 'Major Alterations or Repairs to Existing Buildings' provides as follows:
'1. If alteration and/or repairs in excess of fifty percent of the assessed value of an existing building are made to such building, they shall be made to conform with the requirements given herein for new buildings. Any existing building which, for any reason whatsoever, requires repairs at any one time in excess of 50% of the assessed value thereof, not deducting from such value any loss caused by fire or any other reason, shall be made to conform to requirements given herein for new buildings.'
7. From my examination of the wooden structures on said premises, the frame buildings have been so badly damaged that repairs, if they were possible to be made out of wood, would exceed more than the 50% of the assessed valuation thereof, the assessed valuation ...