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Cellular Mann, Inc. v. JC 1008 LLC

Supreme Court of New York, First Department

January 23, 2014

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.

Mazzarelli, J.P., Friedman, Renwick, Moskowitz, Richter, JJ.

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 A.D.3d 410, 412 [1st Dept 2013]) and correctly declined to construe the amendment against the drafter (see Schron v Troutman Saunders, 97 A.D.3d 87, 93 [1st Dept 2012], affd 20 N.Y.3d 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.


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