Rascoff Zysblat Organization v. Directors Guild of America

297 A.D.2d 241, 746 N.Y.S.2d 399 (Mem) (App. Div. 1st Dept. 8/22/02)

We represented: Defendant

Williams, P.J. Nardelli, Tom, Lerner, Friedman, JJ.

Order, Supreme Court, New York County (Robert Lippmann, J.), entered May 2, 2001, which, inter alia, granted defendant's motion for summary judgment on its first and third counterclaims and dismissing plaintiffs' first through fifth causes of action and first through thirteenth affirmative defenses to counterclaims; order, same court and Justice, entered on or about May 29, 2001, which, inter alia, treated plaintiffs' motion for vacatur of the earlier order as a motion for reargument, granted reargument, and on reargument, adhered to the prior determination; order and judgment (one paper), same court and Justice, entered June 11, 2001, which, inter alia, granted defendant summary judgment on its first counterclaim awarding it possession of the subject premises with related relief, and granted defendant summary judgment on its third counterclaim to the extent of declaring that plaintiffs are not entitled to reimbursement under Paragraph 8 of the memorandum of lease for the premises; and order, same court and Justice, entered August 9, 2001, which fixed use and occupancy at $38,500 per month retroactive to January 2001, directed a payment of $180,000 by plaintiffs by September 2, 2001, and directed ongoing monthly use and occupancy in the amount fixed, unanimously affirmed, with one bill of costs.

The motion court properly declined to invalidate the notice of termination, which, under the circumstances of this case (see, Avon Bard Co. v. Aquarian Found., 260 AD2d 207, 210, appeal dismissed 93 NY2d 998), was as a whole sufficient adequately to advise plaintiff tenant and to permit it to frame a defense (see, Jewish Theological Seminary of Am. v. Fitzer, 258 AD2d 337, 338). The plain language of the renovation provision of the governing termination clause entitled defendant landlord to issue a notice of termination once it had entered into a "contract" to "demolish, renovate and/or develop the building and/or the premises", and it is clear, as a matter of law, that defendant did in fact enter into such a contract. Since the subject termination clause is not ambiguous (see, Reiss v. Fin. Performance Corp., NY2d, 2001 NY LEXIS 3815; Sutton v. E. River Sav. Bank, 55 NY2d 550, 554), extrinsic evidence is not appropriately employed in its construction (see, id.). The motion court properly declined to give effect to a plainly erroneous dismissal order by a prior IAS Justice, which, if given literal effect at this time, would preclude all of plaintiffs' claims and arguments. Summary judgment on the third counterclaim was proper, as was the discretionary award of use and occupancy (see, e.g., Ministers, Elders and Deacons of Reformed Protestant Dutch Church of City of New York v. 198 Broadway, 152 Misc 2d 936, 542). We have considered plaintiffs' remaining arguments and find them unavailing.

This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.