
    Heritage Company of Massena, Appellant-Respondent, v Klein’s All-Sports Distributors, Inc., Respondent-Appellant.
    [623 NYS2d 39]
   —Judgment unanimously modified on the law and as modified affirmed with costs to plaintiff and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Defendant entered into a lease with plaintiff to rent space at the St. Lawrence Centre Mall (Mall). Pursuant to section 7.04 of that lease, defendant was to pay plaintiff additional monthly rent for its pro rata share of the operating costs of the common areas and common facilities. Operating costs included expenses for operating, managing and maintaining the shopping center, the outside area and the Mall area, including "water and sewerage charges and special assessments therefor”. Plaintiff, the Village of Massena and the St. Lawrence County Industrial Development Agency entered into an agreement wherein plaintiff was allowed to connect to the Village’s water and sewer systems and was required to pay the rates charged by the Village for water and sewer services to retail customers residing outside the corporate limits of the Village. Plaintiff introduced evidence that the Village subsequently billed it for water and sewer charges for the Mall and that plaintiff billed defendant for its pro rata share. That proof was sufficient to establish that the water and sewer charges were operating costs pursuant to section 7.04 of the lease and were properly billed to defendant. Defendant’s conclusory allegations that the billings represented capital costs arising from water and sewer facilities constructed to enable the landlord to open the facility are unsubstantiated by the record. Supreme Court’s judgment is, therefore, modified to award plaintiff damages for defendant’s breach of the lease for failing to pay its pro rata share of the water and sewer charges for the Mall together with attorney’s fees, and the matter is remitted to Supreme Court to calculate the amount of those damages and to determine the amount of additional attorney’s fees.

We have reviewed defendant’s contentions on the cross appeal and conclude that they are without merit. (Appeals from Judgment of Supreme Court, Onondaga County, Murphy, J.—Breach of Lease Agreement.) Present—Denman, P. J., Balio, Lawton, Callahan and Doerr, JJ.  