Mode Contempo, Inc. v CKI 23rd St. LLC

Mode Contempo, Inc. v CKI 23rd St. LLC 2007 NY Slip Op 05436 [41 AD3d 293] June 21, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 15, 2007

Mode Contempo, Inc., Respondent,
v
CKI 23rd Street LLC et al., Appellants, et al., Defendants.

—[*1] Nesenoff & Miltenberg, LLP, New York (Robert D. Werth of counsel), for appellants.

Feldman Rosman, New York (Adam J. Feldman of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Shirley Werner Kornreich, J.), entered on or about January 31, 2007, which granted plaintiff's motion for summary judgment on its first cause of action for specific performance, unanimously affirmed, with costs.

Appellants construe language in an assignment and assumption of lease dated June 26, 2003, pursuant to which defendant CKI 23rd Street LLC (CKI) purportedly assigned to plaintiff a commercial lease scheduled to expire in March 2009, as a rescission of an agreement between CKI and plaintiff that obligated CKI to seek consent from the landlord to assign a separate lease for the same premises for the term of April 2009 through March 2019. However, even assuming the validity of the assignment and assumption upon which defendant relies (a matter challenged by plaintiff), its language cannot reasonably be construed to refer to anything other than the previous assignment of the current lease. It is manifest that the subject assignment and assumption was not intended to affect the parties' rights and obligations under the agreement respecting the lease commencing April 2009. Concur—Andrias, J.P., Friedman, Sweeny, McGuire and Kavanagh, JJ.