Geltzer v DuFour Pastry Kitchens, Inc.

Geltzer v DuFour Pastry Kitchens, Inc. 2006 NY Slip Op 08816 [34 AD3d 364] November 28, 2006 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 17, 2007

Robert L. Geltzer, as Chapter 7 Trustee of Bombora House, Inc., et al., Respondents,
v
DuFour Pastry Kitchens, Inc., Appellant.

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Order of the Appellate Term of the Supreme Court, First Department, entered September 23, 2005, affirming an order of Civil Court, New York County (Donna G. Recant, J.), entered on or about July 23, 2004, which directed a hearing to determine the appropriate rental amount for the renewal term of respondent-appellant's sublease, unanimously affirmed, with costs.

The sublease specifically incorporated the provisions of the overlease, which effectively set rent for the renewal period as "fair market" rent (see B. Boman & Co. v Professional Data Mgt., 218 AD2d 637 [1995]). Unlike the boilerplate provision at issue in NPS Engrs. & Constructors v Underweiser & Underweiser (73 NY2d 996 [1989], modfg 141 AD2d 412 [1988] for reasons stated in dissenting mem), the provision in the sublease here incorporating the overlease was specifically modified by the parties to exclude certain overlease provisions. The exclusions, however, did not encompass the overlease's provision respecting the rental amount for the renewal period. Indeed, the sublease, apart from its incorporation of the overlease terms, makes no provision respecting the rental amount for the renewal period. Concur—Mazzarelli, J.P., Saxe, Marlow, Sullivan and Williams, JJ.