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Retroactive Billing for Additional Rent on Air Conditioning Survives Summary Judgment

January 25, 2016  

Itkowitz PLLC just defeated a motion for summary judgment in Supreme Court, New York County, brought by Atalaya Capital Management LP, which occupied a portion of the 16th floor of 623 Fifth Avenue.  Atalaya had sued commercial landlord Fifth Avenue Building Co., seeking a judgment for its security in the amount of $43,982.24 plus $11,919.32  for an alleged overcharge for condenser water for a total of $55,901.56. 

During its last month of occupancy, Fifth Avenue billed Atalaya retroactively for use of a 10 ton supplemental air conditioning system.  Shortly, before the tenant was to vacate, Fifth Avenue advised Atalaya that it had mistakenly been billing it for a 2.5 ton system. Fifth Avenue thereupon presented Atalaya with a retroactive bill for $43,982 for condenser water.  When Atalaya vacated on or about May 2, it had refused to pay the $43,982 and that amount was deducted from its security.  It sued to recover and claimed it was entitled to a refund of  an additional $11,919.32 in alleged condenser water charges.  Fifth Avenue denied Atalaya’s claim, served discovery demands and filed a counterclaim for $31,460 in rent for May claiming that Atalaya, who had vacated on May 2, was responsible for a full month’s rent for May.

Atalaya then moved for summary judgment.  Fifth Avenue opposed and cross moved to compel compliance with its discovery demands. The Court agreed with the position espoused by Itkowitz PLLC that factual issues precluded summary judgment and that Fifth Avenue is entitled to discovery.

Atalaya Capital Management LP v. Fifth Avenue Building Co.; Supreme Court, New York County

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