NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
January 13, 2009
DOUBLE C REALTY CORP., PLAINTIFF-APPELLANT,
CRAPS, LLC, DEFENDANT-RESPONDENT.
Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered July 11, 2008, which, in an action by a tenant against its landlord involving the validity of tenant's exercise of an option to renew the subject lease, denied plaintiff-tenant's motion for summary judgment, unanimously modified, on the law, to the extent of granting plaintiff's motion to dismiss the fourth affirmative defense based upon the Rule Against Perpetuities and otherwise affirmed, without costs.
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.
Andrias, J.P., Nardelli, Moskowitz, Renwick, Freedman, JJ.
By its terms, the lease provides that plaintiff's options to extend the term of the lease "shall be exercised by written notice given to the Lessor at least one (1) year before the expiration of the Initial Term hereof, or, in the event Lessee has previously exercised one or more options herein given, such notice shall be given at least six (6) months before the expiration of such option term." Such options clearly originate in one of the lease provisions, are not exercisable after lease expiration, and are incapable of separation from the lease. Thus, as options "appendant" or "appurtenant" to the lease, they are valid even though the holder's, in this case plaintiff's, interest may vest beyond the perpetuities period and are not contemplated by EPTL 9-1.1(b) (Symphony Space v Pergola Props., 88 NY2d 466, 480 ). We have considered plaintiff's other arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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