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Daeun Corp. v. A & L 444 LLC

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


May 12, 2009

DAEUN CORP., PLAINTIFF-APPELLANT,
v.
A & L 444 LLC, ET AL., DEFENDANTS-RESPONDENTS.

Order, Supreme Court, New York County (Jane S. Solomon, J.), entered November 21, 2008, which granted defendants/landlords' motion to dismiss, and declared that plaintiff/tenant had not validly exercised an option to renew its lease and defendants were not required to accept the purported exercise, unanimously affirmed, with 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., Friedman, Buckley, Acosta, DeGrasse, JJ.

602087/08

Contrary to plaintiff's contentions, the court properly determined the action based upon documentary evidence and the unambiguous lease agreement (see Ark Bryant Park Corp. v Bryant Park Restoration Corp., 285 AD2d 143, 150 [2001]. Because plaintiff had twice defaulted in payment of rent, from September 1, 2005 through February 1, 2006 and from September 1, 2006 through April 1, 2007, defendants could refuse to extend the lease pursuant to paragraph 3 of the Lease Modification dated November 2002, which granted the tenant the option to renew for an additional five year term "[p]rovided Tenant does not default at anytime [sic] under the Lease." We have considered plaintiff's remaining arguments and find them unavailing.

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

20090512

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