Cellular Mann, Inc. v JC 1008 LLC

Cellular Mann, Inc. v JC 1008 LLC 2014 NY Slip Op 00417 Decided on January 23, 2014 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 23, 2014
Mazzarelli, J.P., Friedman, Renwick, Moskowitz, Richter, JJ.
11533 652254/13

[*1]Cellular Mann, Inc., Plaintiff-Appellant,

v

JC 1008 LLC., et al., Defendants-Respondents.




Kucker & Bruh, LLP, New York (Nativ Winiarsky of counsel),
for appellant.
LaRocca Hornik Rosen Greenberg & Blaha, LLP, New York
(Amy D. Carlin of counsel), for respondents.

Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered on or about September 16, 2013, which, in an action for, inter alia, declaratory relief, granted defendants' motion to dismiss the complaint, unanimously modified, on the law, to declare in defendants' favor that the lease amendment renewal option was not properly exercised, and otherwise affirmed, without costs.

The motion court properly found the lease amendment unambiguous, and therefore correctly refused to consider extrinsic evidence of a prior agreement or the parties' post-amendment course of performance (see Chelsea Piers, L.P. v Hudson River Park Trust, 106 AD3d 410, 412 [1st Dept 2013]) and correctly declined to construe the amendment against the drafter (see Schron v Troutman Saunders, 97 AD3d 87, 93 [1st Dept 2012], affd 20 NY3d 430 [2013]). The tenant's "limited" right to renew its lease was properly understood as an alternative to the landlord's right to reject the renewal notice if, at the expiration of the lease, the landlord decided to combine the tenant's premises with the adjacent vacant space.

We have considered plaintiff's additional arguments, including those raised for the first time in its appellate reply brief, and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 23, 2014

CLERK