B & Z Auto Enters., LLC v Gallagher (2007 NY Slip Op 08358)

B & Z Auto Enters., LLC v Gallagher

2007 NY Slip Op 08358 [45 AD3d 307]

November 8, 2007

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, January 16, 2008

B & Z Auto Enterprises, LLC, Doing Business as Riverdale Chrysler Jeep, Appellant,
v
John J. Gallagher et al., Respondents.

—[*1] Borah, Goldstein, Altschuler Nahins & Goidel, P.C., New York City (Paul N. Gruber of counsel), for appellant.

Kevin O'Rourke Moore, Hartsdale, for respondents.

Order, Supreme Court, Bronx County (Alan J. Saks, J.), entered November 30, 2006, which, to the extent appealed from as limited by the briefs, granted defendants' cross motion to dismiss the complaint pursuant to CPLR 3211 (a) (1), unanimously affirmed, with costs.

The court properly dismissed the complaint wherein plaintiff claimed that it did not violate its lease with defendants based on a deficiency in its monthly rent payments. The monthly rent charged by defendants was calculated pursuant to the language of the commercial lease setting forth the formula for computing the cost of living rent increase, which was in clear and unambiguous terms (see Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470, 475 [2004]). Concur—Mazzarelli, J.P., Marlow, Williams, Catterson and Kavanagh, JJ.