
    Wilfred Laboratories, Inc., Appellant, v Fifty-Second Street Hotel Associates et al., Respondents, et al., Defendant.
   Order of the Supreme Court, New York County (Martin Evans, J.), dated July 7,1983 which, in part, denied the plaintiff-appellant’s motion for summary judgment, unanimously modified, on the law, to grant additional partial summary judgment in favor of plaintiff for restitution of rent paid for the period May, 1982 to June, 1983 and otherwise affirmed, without costs. H The defendants are engaged in the construction of a 26-story addition to an existing four-story building at 1657 Broadway, in which building the plaintiff is the only tenant on the second, third and fourth floors. 11 The plaintiff sought to enjoin the construction of the addition and to withhold rent and to obtain a refund of rent paid during the period involved. H The lease between the plaintiff and the landlord provided that upon six months’ notice, the landlord could construct the addition. However, it also provided that the tenant would not have to pay rent during a period of construction. 11 The court, at Special Term, properly determined that the construction could not be enjoined and further that the plaintiff need not pay rent in accordance with the terms of the lease. However, it did not provide for restitution of the rent already paid under protest, and we grant such restitution of rent paid for the period May, 1982 to June, 1983. Concur — Murphy, P. J., Kupferman, Sandler, Ross and Silverman, JJ.  