WA OLSON ENTERS., INC. v. Agway, Inc.

55 N.Y.2d 659 (1981)

W.A. Olson Enterprises, Inc., Respondent, v. Agway, Inc., et al., Appellants.

Court of Appeals of the State of New York.

Argued October 16, 1981.

Decided November 19, 1981.

Paul J. Yesawich, III, for appellants.

Joseph L. Watson for respondent.

Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.

*661MEMORANDUM.

The judgment appealed from and the order of the Appellate Division brought up for review should be affirmed, with costs.

Because there was no evidentiary proof that the closing was unreasonably delayed by the plaintiff, the trial court properly granted summary judgment to the plaintiff for the percentage rents due under the lease. For the same reason, the Appellate Division was correct in its modification which awarded attorneys' fees to the plaintiff. Additionally, even if it were concluded that the provisions of the lease with respect to the tenant's obligation to pay rent after exercising the option to purchase were ambiguous, in the absence of any tender in the motion papers of extrinsic evidence to resolve the ambiguity, the issue is one of law to be determined by the court (Hartford Acc. & Ind. Co. v Wesolowski, 33 N.Y.2d 169, 172).

We do not pass on the request in plaintiff's brief that we remand to Special Term to pass on fees for services rendered on the appeal before us, a remand for such purpose being neither authorized nor necessary.

Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, in a memorandum.