Upon the foregoing papers in this action for breach of a lease, plaintiff Beverly Bergman (plaintiff) moves for summary judgment in her favor in the sum of $251,920, plus interest and attorney's fees, as against defendants Kleinfeld Bridal Corp. a Delaware corporation; Kleinfeld Bridal Corp., a New York corporation; KBC Operating Corp.; and KBC Holding LLC (collectively, the KBC defendants).

On January 26, 1990, plaintiff's late husband, Paul Bergman (Bergman), as landlord, entered into a lease (the 1990 lease), renting the first floor and basement of real property located at 8214 5th Avenue, in Brooklyn, New York, to defendant Schachter Incorporated, f/k/a I. Kleinfeld & Son, Inc. ( Schachter), as tenant. The lease was for a period of five years, beginning on February 1, 1990 and ending on January 31, 1995, with the option to extend the lease for two successive five-year periods on certain terms and conditions. The monthly rent was $3,000 per month for the first year, which increased each year and reached $3,650 for the February 1, 1994 through January 31, 1995 year. The monthly rent was set at $4,000 for the first five-year option period and $4,500 for the second five-year option period. [*2]

Schachter had leased the premises from Bergman to combine it with six other buildings so as to form one large bridal store on the block, extending from the corner of 82nd Street and 5th Avenue. The premises was the sixth of these buildings. The adjacent building on one side of the premises was owned by a different landlord, and the five buildings on the other side of the premises were all owned by another unrelated landlord. In order for Schachter to carry out its objective of combining the buildings, Schachter broke down the walls of the first floor and basement, removed the store front of the premises, stuccoed over the front of the premises, removed the restroom from the rear to the front of the premises, installed numerous changing rooms, and combined some of the premises' systems with those of the adjacent buildings.

Paragraph 45 of the lease expressly permitted these alterations by providing as follows:

"45-REMOVAL OF EXTERIOR WALLS:

Landlord agrees that Tenant shall be permitted to break down the wall or walls separating the leased premises from the adjoining premises at both the street level and basement level as and if the Tenant deems it desirable and necessary to do so. Tenant agrees that at the end of the leased term, including any extensions contained herein, it shall close any openings between the demised premises and the adjacent buildings at its cost and expense. Landlord agrees that Tenant shall be permitted to alter and change the store front of the leased premises including the removal and relocation of the stairway entrance leading to the residential apartments located on the 2nd and 3rd floor of the building and Landlord agrees that Tenant shall not be required to restore the store front or the stairway to the original condition existing on the date of the execution of this lease. Stairway entrance shall lead direct from street to stairway."

Paragraph 53 of the lease specifically required the Tenant "to make all repairs to the plumbing and electrical systems to the demised premises." The lease also contained, in paragraphs 3, 4, 18, 19, 21, and 39, the standard form store lease provisions regarding "Alterations," "Repairs," "Remedies of Owner and Waiver of Redemption," "Fees and Expenses," "End of Term," and "Successors and Assigns."

Paragraph 3 prohibited the Tenant from seeking any changes in the demised premises without the Owner's written consent, but permitted alterations, which are non-structural, to the interior of the demised premises with the Owner's consent. With respect to "[a]ll fixtures and all paneling, partitions, railings and like installations, installed in the premises at any time," paragraph 3 provided as follows:

"All fixtures and all paneling, partitions, railing and like installations, installed in the premises at any time . . . shall, upon installation, become the property of Owner and shall remain upon and be surrendered with the demised premises unless Owner, by notice to Tenant no later than twenty days prior to the date fixed as the termination of this lease, elects to relinquish Owner's rights thereto and to have them removed by Tenant, in which event, the same shall be removed from the premises by Tenant prior to the expiration of the lease, at Tenant's expense . . . Tenant shall immediately and at its expense, repair and restore the premises to the condition existing prior to installation and repair any damage to the demised premises or the building due to such removal. All property permitted or required to be removed by Tenant at the end of the term remaining in the premises after Tenant's removal shall be deemed abandoned and may, at the election of Owner, either be retained as Owner's property or may be removed from the premises by Owner at Tenant's expense." [*3]

Paragraph 4 generally required the Tenant "throughout the term of this lease, [to] take good care of the demised premises and the fixtures and appurtenances therein . . . and at its sole cost and expense, make all non-structural repairs thereto as and when needed to preserve them in good and working order and condition, reasonable wear and tear, obsolescence and damage from the elements." Paragraph 21 of the lease required the Tenant to surrender the demised premises to the Owner "in good order and condition" upon the termination of the term of the lease.

Paragraph 18 of the lease generally provided that in case of a default by the Tenant, the Owner is entitled to liquidated damages, such as attorney's fees and expenses incurred in "preparing the [premises] for re-letting." Paragraph 19 also provided for the recovery of fees and expenses in the event of a default by the Tenant "in the observance or performance of any term or covenant on Tenant's part."

Paragraph 39 of the lease contained the standard form provision that:

"39. The covenants, conditions and agreements contained in this lease shall bind and inure, to the benefit of Owner and Tenant and their respective heirs, distributees, executors, administrator, successors, and except as otherwise provided in this lease, their assigns."

Paragraph 44 of the lease specifically addressed the assignment of the

lease by providing:

"44. ASSIGNMENT AND SUBLET

Landlord acknowledges and agrees that Tenant shall be permitted to assign this lease or sublet the leased premises in whole or in part without the prior consent of the Landlord provided such assignment or subletting is associated with the sale of Tenant's business in whole or in part. In all other circumstances, an assignment or subletting shall be with Landlord's consent which shall not be unreasonably withheld or delayed."

On November 1, 1994, following the death of Bergman, plaintiff, who is his wife, acquired title to the premises. Schachter remained in possession of the demised premises, as tenant, and paid monthly rent pursuant to the terms of the lease during its initial term and thereafter until February 13, 1999, at which time Schachter's assets were purchased by IKI Corp. By letter dated March 9, 1999 (the March 9, 1999 letter), plaintiff referred to the purchase of Schachter's assets by IKI Corp. and "agree[d] that the lease for the premises now occupied by IKI Corp., which is doing business as Kleinfeld, w[ould] be continued on a month-to-month basis." She stated therein that "[a]ll conditions of the current lease must be complied with by IKI Corp." She further stated, in such letter, her "understand[ing] that there w[ould] be a new lease discussion and a proposed new lease executed in the next few months." The March 9, 1999 letter was agreed to and accepted by Eugene Kohn (Kohn), the CEO of IKI Corp., by his signature thereon.

By memorandum dated July 7, 1999 (the July 7, 1999 memorandum) to Bergman and the two landlords which owned the adjoining premises making up the Kleinfeld store, Kohn stated that new leases "must be executed with the new Kleinfield operating corporation," which was to acquire IKI [*4]Corp.'s assets. Kohn further stated that this would result in a "move from the present month-to-month status to a full lease." Kohn, in the July 7, 1999 memorandum, informed the landlords that "[t]he investors in the new Kleinfeld would like to understand that [they we]re in agreement on the outlines of a new lease arrangement," and requested their initials on certain "principles [which] would provide the comfort [they] all need[ed] to negotiate and sign new documents."

These principles, which were set forth in the July 7, 1999 memorandum, provided for a lease term of eight years with two five-year options, and rent, using the current monthly and annual rentals. Furthermore, the paragraph entitled "Rent" provided that the rentals were to "be structured so there is an agreed upon discount during the first three years, two years equal to the current leases and three years to make up for the early concessions." Said paragraph further provided that "Kleinfeld will be responsible for expenses as called for in each current lease." The July 7, 1999 memorandum listed a rent structure for the eight-year period with a monthly rent of $3,600 for the first three years and $4,000 for the fourth and fifth years, and $4,500 for the sixth through eighth years.

The July 7, 1999 memorandum also provided that a new "exit provision" clause to "allow Kleinfeld to exit from the leases" would be signed on the basis that there would be "[n]o exit until after the fifth lease year," "[o]ne year notice to be given no later than the end of the fourth year," and "[r]e-payment, over three years, of any concessions granted earlier in the lease." Plaintiff initialed the July 7, 1999 memorandum on July 9, 1999.

By a bill of sale dated July 9, 1999, defendant KBC Operating Corp., a newly formed corporation, purchased the assets of IKI Corp. from Gordon Brothers Capital, LLC (Gordon), which, as a secured party, had foreclosed upon those assets, as collateral, pursuant to a $3 million defaulted loan given by Gordon to IKI Corp. These assets included the Kleinfeld bridal business. KBC Operating Corp., in paragraph 2(b) of the bill of sale, acknowledged that Gordon was "selling only those assets in which [it] ha[d] been granted a security interest by [IKI Corp.], and not any items of leased property . . . not owned by [IKI Corp.]." The purchased assets, however, included "[a]ll personal property and fixtures" of IKI Corp., including "all documents and instruments (whether negotiable or nonnegotiable)."

Despite the reference in the July 7, 1999 memorandum to a new lease, no new formal lease was, in fact, executed between the KBC defendants and plaintiff. The KBC defendants assert that this was because they were unable to reach satisfactory lease agreements with the other two landlords, which would all expire at the same time. The KBC defendants, however, occupied the premises continuously from August 1, 1999 through July 31, 2005, running the same Kleinfeld bridal business under the same Kleinfeld name, and using the same employees as their predecessors. In addition, the KBC defendants paid rent in the monthly amount of $3,600 from August 1999 through August 2002, $4,000 from August 2002 to August 2004, and $4,500 from August 2004 until July 2005. Such rental payments were in accordance with the rental payments set forth in the July 7, 1999 memorandum. The KBC defendants also delivered insurance policies to plaintiff, as was required under the terms of the 1990 lease.

By "Notice of Termination of Month-to-Month lease" dated May 25, 2005, Kleinfeld Bridal Corp. advised plaintiff that it "ha[d] elected to terminate its month-to-month lease with [her] effective July 31, 2005" for the demised premises. In response, plaintiff went to the offices of the KBC defendants and met with their CFO, Walter Wilkens (Wilkens), and requested that the KBC defendants restore her premises to a stand-alone store. Plaintiff alleges that Wilkens requested a list [*5]of what needed to be done to restore the premises. Plaintiff then retained a contractor, Safe Haven Inspections, which provided an estimate of the work required to convert the premises back to an independent rentable retail space. Plaintiff faxed this estimate to Wilkens on July 25, 2005. Safe Haven Inspections charged plaintiff $550 for this property conversion assessment.

The KBC defendants vacated the premises on July 31, 2005. At that time, they ceased paying rent. They also made no effort to restore the premises to a stand-alone store. By letter dated September 12, 2005 to the KBC defendants (which enclosed Safe Haven Inspections' estimate), plaintiff's attorney pointed out that the walls were open between the demised premises and the stores on both sides of it, which were owned by different landlords, and that the various systems had been combined among the buildings so that they could not operate independently in their present condition. Plaintiff's attorney also noted that the bathroom had to be moved to the rear of the store, where it was originally located, and that restoration was needed with respect to the dressing rooms which filled much of the premises. Plaintiff's attorney asserted that the premises were unrentable in their current condition, and demanded that the premises be restored.

Plaintiff's attorney, in his September 12, 2005 letter, further asserted that the KBC defendants, by ceasing paying rent as of August 1, 2005 and giving only two months' notice of termination, were in breach of their rent obligation (set forth in the July 7, 1999 memorandum) to give one year's notice prior to exiting the lease. He states that plaintiff was, therefore, owed rent for 10 more months at the rate of $4,500 per month or a total of $45,000. Plaintiff's attorney additionally stated that the KBC defendants were obligated to repay, over three years, the rent deferrals they received of $400 per month through January 31, 2001, aggregating $7,200; $900 per month for the period from February 1, 2001 through July 31, 2002, aggregating $16,000; and $500 per month for the period from August 1, 2002 through July 31, 2002, aggregating $12,000 (for a total sum of $35,400 for the rent deferrals). The KBC defendants did not respond to this letter.

Thereafter, plaintiff entered into a contract with Safe Haven Inspections to convert the premises back to an independent retail store at an estimated cost of $153,000. The scope of the work included demolition of the front concrete of the building for a new store front, installation of an independent electrical service, blocking the five openings with cinder blocks, cementing the backyard, providing and installing a store front including an apartment door, providing new tiling throughout the first floor, installing a new ceiling throughout the first floor, installing a new bathroom and kitchenette, installing sheetrock, replacing missing baseboards and tiling, providing and installing a new air-conditioner unit, and running new water and waste lines to accommodate the new bathroom and kitchenette.

On March 20, 2006, plaintiff filed this action against the KBC defendants, IKI Corp., and Schachter. IKI Corp., which has not answered plaintiff's complaint, is now an assetless, inactive, and defunct corporation, which ceased operations and/or existence upon the transfer of its assets to the KBC defendants in 1999. Plaintiff's action has been settled as against Schachter.

Plaintiff's complaint alleges that on February 19, 1999, Schachter's interest in and obligations under the 1990 lease, as modified, amended, and extended by the March 9, 1999 letter and the July 7, 1999 memorandum, were sold and/or assigned to IKI Corp., and that, on July 9, 1999, such interest and obligations under the lease were further sold and/or assigned to the KBC defendants. Plaintiff's complaint asserts that the KBC defendants have breached their obligations under the lease to restore the premises, to give one year's notice prior to termination, and to repay rent deferrals. [*6]Plaintiff's first cause of action seeks specific performance requiring the KBC defendants to restore the premises to its condition prior to the lease. Plaintiff's second cause of action alternatively seeks damages for the costs and expenses to be incurred by her in restoring the premises and in prosecuting this action, including attorney's fees. Plaintiff's third cause of action seeks damages in the amount of unpaid rent since August 1, 2005 through the date of completion of the restoration of the premises, damages caused by the KBC defendants' failure to give one year's notice of termination of the lease, and damages in the amount of $35,400 by reason of the KBC defendants' failure to pay the rent deferrals provided in the July 7, 1999 memorandum. Plaintiff's fourth cause of action seeks compensatory damages for waste. The KBC defendants have interposed an answer to plaintiff's complaint, denying plaintiff's allegations and asserting defenses.

Plaintiff, in support of her motion, seeks summary judgment in her favor on her second and third causes of action for damages in the amount of $550 for the estimate by Safe Haven Inspections, $153,000 to restore the premises, $35,400 to repay the rent deferrals, and the unpaid rent at $4,500 per month from August 1, 2005 to the present (which at the time of the motion equaled $63,000), for a total of $251,950, plus interest and attorney's fees. Plaintiff claims that she is entitled to these damages due to the covenants of the 1990 lease, which, she asserts, the KBC defendants assumed by assignment, and due to the modifications of the 1990 lease set forth in the March 9, 1999 letter and the July 7, 1999 memorandum.

The KBC defendants, in opposition to plaintiff's motion, argue that plaintiff cannot show that the 1990 lease had been assigned to them because they never executed a written agreement of assignment. It is well settled, however, that "a tenant may assume a lease by its actions, even if no written agreement is present" (Salvatore R. Beltrone Marital Trust II v Lavelle & Finn, LLP, 22 AD3d 936, 936 [2005]; see also Mann v Munch Brewery, 225 NY 189, 193 [1919]; Probst v Rochester Steam Laundry Co., 171 NY 584, 588-589 [1902]). "Where a person other than the lessee is shown to be in possession of leasehold premises, the law presumes that the lease has been assigned to [it]" (Mann, 225 NY at 193). Indeed, "a tenant in possession, paying rent, creates a presumption of an assignment sufficient to satisfy the statute of frauds" (Salvatore R. Beltrone Marital Trust II, 22 AD3d at 936-937; see also Frank v New York, Lake Erie & W.R.R. Co., 122 NY 197, 221 [1890]; Benoliel v New York & Brooklyn Brewing Co., 144 App Div 651, 652 [1911]).

Here, the KBC defendants obtained the right to possession from IKI Corp., and IKI Corp.'s only right to occupy the premises owned by plaintiff was pursuant to the 1990 lease. The KBC defendants remained in possession of the premises for six years and paid rent to plaintiff precisely as required by the rent schedule contained in the July 7, 1999 memorandum (which modified the 1990 lease) and they otherwise complied with the terms of the 1990 lease, including delivering copies of insurance policies as required by paragraph 6 of the 1990 lease. Thus, plaintiff has made a prima facie case that there had been a due assignment of the lease to the KBC defendants, and that they held possession of the demised premises by privity of estate under the lease by virtue of an assignment (see Conditioner Leasing Corp. v Sternmor Realty Corp., 17 NY2d 1, 3-4 [1966]; Salvatore R. Beltrone Marital Trust II, 22 AD3d at 936-937; Benoliel, 144 App Div at 652).

The KBC defendants point out that the presumption of assignment is rebuttable and may be overcome by evidence that the parties did not intend to sign or lease or had some other understanding (see Benoliel, 144 App Div at 652). They attempt to rebut this presumption by arguing that they acquired only IKI'S assets, which was posted as collateral, for a secured loan, and that the foreclosure [*7]sale did not include a lease. They assert that they did not purchase the lease and contend that, therefore, the lease could not have been assigned to them.

This argument is unavailing. Paragraph 2(b) of the bill of sale simply states that leased property not owned by IKI Corp. was not sold in the foreclosure sale. The purchased assets, however (as noted above), included "all documents and instruments" of IKI Corp. (which had previously purchased Schachter's assets). Moreover, the KBC defendants actually assumed occupancy of the subject premises, and have not shown any basis for their occupancy other than based upon IKI Corp.'s rights as the prior tenant.

The KBC defendants further assert that plaintiff has not shown that either of the lease's two five-year options were exercised. They contend that the lease between plaintiff and Schachter, therefore, expired, by its terms, on January 31, 1995, and that once it did so, there was nothing which could have been assigned to them. Such contention is devoid of merit, Schachter remained in occupancy and paid rent following January 31, 1995. The rent provisions contained in paragraphs 40 and 51 show increases of rent after the exercise of each option and the checks reflect payment of rent at these rates.

The KBC defendants additionally argue that the March 9, 1999 letter could only be a new agreement in which a month-to-month tenancy was established, and not a continuation of an existing lease. Such argument is rejected. As discussed above, the March 9, 1999 letter specifically stated that the existing lease for the premises would "be continued," and that "[a]ll terms and conditions of the current lease must be complied with by IKI Corp." (emphasis supplied).

The KBC defendants argue that there could be no assignment to them pursuant to the July 7, 1999 memorandum. They assert that the July 7, 1999 memorandum was not an agreement of any kind, but merely an unenforceable "agreement to agree." They claim that since the July 7, 1999 memorandum referred to the need to sign a new lease agreement, it evidences an intent that they were not to be bound until such a final document was executed.

Such argument must be rejected. Generally, "where there is an understanding that a more formal contract is to follow a memorandum, and essential terms have been omitted and left for future negotiations," the memorandum cannot be enforced (Rouzani v Rapp, 203 AD2d 446, 447 [1994]). However, a clear and explicit agreement in writing to give a lease may be enforced as a contract between the parties, even if a formal lease is not thereafter executed despite the fact that the parties contemplated it at the time they made the agreement, especially if the landlord fails to articulate any intent to be bound only by a formal lease (see Kalker v Columbus Props., 111 AD2d 117, 118 [1985]). Here, while the July 7, 1999 memorandum indicates that "new leases . . . must be executed," it also sets forth an "agreement on the outlines of [the] new lease arrangement," which includes the required rental payments. It is undisputed that the KBC defendants made these rental payments. Moreover, here, a modification to an alleged assigned existing lease, rather than a completely new lease, is involved. Thus, triable issues of fact are raised as to the parties' intent with respect to the July 7, 1999 memorandum.

The KBC defendant also assert that the July 7, 1999 memorandum is unenforceable because it did not include essential terms, such as the name of the tenant, the premises to be rented, or the lease's commencement or end dates. Such assertion lacks merit as it was apparent to the parties that they were to be the new tenants of the premises (which was also demonstrated by their later actual occupancy thereof), and that the premises was the subject premises. In addition, the July 7, 1999 [*8]memorandum specifically refers to an eight-year term and lists dates and stated rents for such dates, and the KBC defendants actually assumed occupancy and paid rent in accordance with the terms of the July 7, 1999 memorandum.

Thus, while the legal presumption of assignment is rebuttable, the KBC defendants have not presented sufficient evidence to conclusively rebut such presumption at this juncture (see Salvatore R. Beltrone Marital Trust II, 22 AD3d at 937 n *). Rather, there are material triable issues of fact as to the parties' intent to be bound by the terms of the original 1990 lease, including the obligation contained therein to restore the premises (see id. at 937).

The covenant to restore "is a covenant running with the land inasmuch as it affects the use, value and enjoyment of the premises" (Clemente Bros. v Peterson-Ashton Fuels, 29 AD2d 908, 910 [1968]). "[A]n assignee will be liable for covenants that run with the land only while in privity of estate" (Salvatore R. Beltrone Marital Trust II, 22 AD3d at 937; see also Mann, 225 NY at 195; Frank, 122 NY at 219). "Once privity of estate is broken, the liability ends unless such assignee expressly agreed to carry out the terms of the stated lease" (Salvatore R. Beltrone Marital Trust II, 22 AD3d at 937; see also Hart v Socony-Vacuum Oil Co., 291 NY 13, 16-18 [1943]; Mann, 225 NY at 195; Salvatore R. Beltrone Marital Trust II v Lavelle & Finn, LLP, 13 AD3d 869, 870-871 [2004]).

The KBC defendants argue that the covenant to restore does not run with the land because there was no express assignment of the lease. The court, however (as discussed above), finds that there is sufficient evidence to raise triable questions of fact as to whether the KBC defendants expressly agreed and undertook to carry out the terms of the 1990 lease, which included the covenant to restore (see Mann, 225 NY at 196; Salvatore R. Beltrone Marital Trust II, 22 AD3d at 937). In this regard, it is noted that paragraph 39 made the lease's covenants binding upon the assignees of the Tenant and paragraph 44 permitted the Tenant to assign the lease when the assignment was associated with the sale of the Tenant's business. Furthermore, the KBC defendants remained in possession of the altered premises, utilizing and benefiting from their altered condition to carry on their business. In addition, the KBC defendants were aware of all of the terms contained in the 1990 lease at the time they took occupancy. While plaintiff seeks summary judgment in her favor with respect to restoration, the existence of triable issues of fact regarding the claimed assignment precludes the granting of such relief (see CPLR 3212 [b]; Salvatore R. Beltrone Marital Trust II, 22 AD3d at 937; Smith v Brooklyn Alcatraz Asphalt Co., 205 App Div 277, 279 [1923]).

The KBC defendants, in opposing plaintiff's motion regarding restoration costs, also argue that because plaintiff has not alleged or proved that she exercised her option to have Tenant's alterations removed as required by paragraph 3 of the lease, she is not entitled to have any party remove Tenant's alterations. Such argument is rejected. The covenants of a lease run with the land (see Clemente Bros., 29 AD2d at 910), and, in any event, plaintiff, has specifically stated that she demanded of Wilkens that the KBC defendants restore the premises.

With respect to the damages sought by plaintiff's motion, it is noted that Safe Haven Inspections' estimate is not dispositive on the issue of the reasonable amount of damages sustained by plaintiff. This estimate includes repairs to the store front and other alterations and improvements which were not required to be made in the 1990 lease. The KBC defendants were not the parties which actually made these alterations and the KBC defendants were under no duty to restore the [*9]premises other than as provided by the 1990 lease (see Polo v International Trust Co., 166 Misc 398, 402 [1937], affd 257 App Div 820 [1939]).

Paragraph 53 required the Tenant to make repairs to the plumbing and electrical systems, and, pursuant to paragraph 45 of the lease, the Tenant was required to close the openings between the demised premises and the adjacent buildings with its cost and expense. Paragraph 45 expressly did not require the tenant to restore the store front. Plaintiff asserts that Schachter did not simply alter the store front, but removed it entirely and replaced it with a solid, windowless wall. She contends that the KBC defendants are required to bear the expense of installing a new store front. Plaintiff, however, expressly or impliedly consented to these alterations by Schachter, which occurred years before the KBC defendants took occupancy, precluding any claim to restoration of the such store front in the absence of any affirmative covenant (see Petrelli v Kagel, 37 Misc 2d 246, 248 [1962]; Civic Realty Co. v New York Tel. Co., 16 Misc 2d 660, 664 [1959]). Thus, the amount of the reasonable damages sustained by plaintiff with respect to restoration raises triable issues of fact, which can only be ascertained upon a trial of this action.

Insofar as plaintiff's motion seeks recovery of unpaid rent, since privity of estate ceases to exist when an assignee vacates the premises, such recovery may only be had if there was an express assumption to make such payment (see Salvatore R. Beltrone Marital Trust II, 22 AD3d at 937; Salvatore R. Beltrone Marital Trust II, 13 AD3d at 871). While plaintiff seeks to recover continuous rent from the time of the KBC defendants' vacatur of the premises on July 31, 2005 until such time as they restore the premises, no where in the lease does it impose upon the Tenant such a continuing obligation to pay rent until the premises are restored to its original condition. Rather, plaintiff may only recover her reasonable damages.

Although, plaintiff also seeks to recover $45,000 for 10 months of rent because she was not given one year's notice prior to termination of the lease by the KBC defendants, she has not conclusively shown that she had reached a final and binding agreement with respect to this issue. No formal lease containing this term was executed by the KBC defendants. Additionally, the 1990 lease's second five-year option period would have ended on January 31, 2005 and IKI Corp., pursuant to the March 9, 1991 letter, had occupied the premises as on a month-to-month basis. Thus, triable issues of fact exist regarding the agreement as to the extension of the lease and the lease term (see Probst, 171 NY at 587-588).

Plaintiff's motion also seeks summary judgment with respect to the repayment of the $35,400 in rent concessions given to the KBC defendants. While the KBC defendants deny that a binding agreement existed with respect thereto, the rent concession reduced the rent which would have otherwise been due under the 1990 lease in consideration of the KBC defendants remaining in tenancy for an eight-year rental period. This raises triable issues of fact as to whether the KBC defendants, by making payments in these reduced amounts, agreed to a modification of the 1990 lease so as to be liable to plaintiff for the amount of these reductions upon their failure to remain in occupancy as tenants for the eight-year period.

Accordingly, plaintiff's motion for summary judgment in her favor is denied in its entirety.

This constitutes the decision and order of the court.

E N T E R,

J. S. C. [*10]