Plaintiff Mark Hotel LLC (the Hotel), as tenant, and defendant Madison Seventy-Seventh LLC (Madison), as owner, bring a motion and cross motion, respectively, for summary judgment, in this action over disputed terms in a long-term lease (the Lease). A Yellowstone injunction, enjoining Madison from terminating the Lease, was granted to the Hotel in a prior decision of this court.

The Hotel operates a luxury hotel, located as 25 East 77th Street, New York, New York (the premises), under the Lease, which will not expire until 2131. This action arises from the Hotel's desire to renovate the premises to include a number of luxury cooperative hotel units, and Madison's belief that the Hotel has no right to do so.

The Lease contains a clause defining the possible uses to which the premises can be made, as follows:

The Lessee covenants and agrees that it will not use or occupy the leased premises, or permit the said premises to be used or occupied for other than a luxury hotel (including a cooperative or condominium hotel such as the Hotel Carlyle) and for all operations and uses incidental to and/or customarily found in connection with such hotel use (including but not limited to restaurants, retail stores, professional offices and transient or permanent residential uses) or for a purpose or in a manner likely to cause structural or other injury to any building erected on the premises, or in a manner which shall violate any certificate of occupancy in force relating to any building thereon situated. Notwithstanding the foregoing, if any law, ordinance or regulation is now or hereafter enacted or any event hereafter occurs which renders such hotel use illegal or impossible, the Lessee may thereafter use the premises for a Class A multiple dwelling, or if that use is rendered illegal or impossible, then for any other legal purpose.

By a letter dated December 1, 2006, the Hotel advised Madison that it intended to renovate the premises in a manner that would include several floors of luxury cooperative hotel units, and requested Madison's approval, as required by the Lease. The Hotel's letter included a complete copy of the architect's plans, and indicated the Hotel's anticipated schedule for the project. According to the letter, the Hotel expected to start the project after the New Year, and concluding it 18 months later. The letter also informed Madison that the Hotel intended to secure all necessary permits required for the project.

The Lease contains a provision regarding requests by the Hotel for Madison's approval of the project. The provision reads:

Whenever the Lessor's consent or approval is requested by the Lessee under this Lease and whenever such consent or approval is not to be unreasonably withheld pursuant to the terms of this Lease and, if the Lessor does not respond to the Lessee's request within 15 days after its receipt of such request, then the Lessee shall have the right to send a second request to the Lessor and, if the Lessor fails to respond to such request within five days after its receipt, the consent or approval of the Lessor so requested shall automatically and conclusively be deemed to have been given.

When the Hotel received no reply to its initial request, the Hotel, pursuant to the Lease, sent a second request to Madison for approval of the Hotel's planned renovations, in a letter dated December 20, 2006. Complaint, Ex. 6. Madison responded to the Hotel's December 20, 2006 letter, through its attorney, in a letter dated December 21, 2006. Id., Ex. 7. The letter reads, in pertinent part, as follows:

[y]our letters make reference to the conversion of a portion of The Mark Hotel to cooperative hotel units. Please be advised that under the terms of the Lease the tenant thereunder is not permitted to convert any portion of the premises demised thereunder to cooperative hotel units. As soon as you confirm that you have no intention of converting all or any portion of the subject premises to cooperative hotel units, the landlord would be pleased to review any renovation plans that you may submit with respect to The Mark Hotel.

The Hotel next responded with a letter dated January 10, 2007, in which it expressed its disagreement with Madison's interpretation of the Lease, claiming, instead, that Article Fifth of the Lease (as quoted above), expressly provided for the construction of luxury cooperative hotel units on the property. The Hotel also stated that Madison's lawyer's letter was unresponsive to the Hotel's letters "because the form of ownership or organization of hotel units has no relationship to the propriety of the physical renovations that are reflected in the plans provided to [*3]you." Id., Ex. 8.

In a letter from Madison's attorney dated January 16, 2007, responding to the Hotel's January 10, 2007 letter, Madison stated again that the Hotel had no right to continue any plan involving luxury cooperative hotel units. More specifically, Madison indicated that the ground for its refusal to acquiesce in the Hotel's plans was because "it is clear [from the terms of the Lease] that the parenthetical expression (including a cooperative or condominium hotel units such as the Hotel Carlyle)' refers to those uses that [the] leased premises cannot be used for." Id., Ex. 9.

The Hotel's response was a letter dated January 31, 2007, wherein the Hotel called Madison's interpretation of the Lease "absurd and completely inconsistent with any reasonable interpretation of the language of the provision." Id., Ex. 10. The Hotel further stated that "the ownership of units in condominium or cooperative form has nothing to do with the propriety of the physical alterations that are reflected in the plans" and, because Madison had "never commented upon the plans," Madison was "deemed to have consented to and approved those plans and should expect [the Hotel] will act accordingly." Id.

During this exchange, the Hotel was preparing to begin the renovation process, which involved, among other things, obtaining all necessary building permits. The Hotel applied for permits from the Department of Buildings (DOB), apparently identifying itself as the owner of the premises. Madison, objecting to the Hotel's application for approval of its plans, wrote a letter to the DOB dated February 6, 2007, in which it informed the DOB that the Hotel was not the owner of the premises, but that the premises was owned by Madison. Madison informed the DOB that it had not authorized or consented the filing of the Hotel's application. Id., Ex. 11. The Hotel, informed of this letter, provided the DOB with, among other things, a copy of the Lease. The Hotel claims that the DOB continues to cooperate with it in the course of the ongoing renovations, by reviewing and processing various applications.

On March 7, 2007, Madison served a Default Notice on the Hotel, claiming that it would terminate the Lease unless the Hotel cured its alleged default in 30 days. The Hotel's motion for a Yellowstone injunction ensued. The injunction was granted on August 18, 2007.

The Hotel's complaint contains three causes of action: (1) for a judicial declaration that it is not in default of the Lease because luxury cooperative hotel units are a permitted use under the Lease; (2) for a judicial determination that it is not in default of the Lease for commencing the alterations without Madison's consent, because Madison should be deemed to have given its approval to the alterations when it allegedly failed to respond to the Hotel's request for permission in a manner consonant with the terms of the Lease; and (3) for a judicial declaration that the Hotel is not in default under the Lease because it identified itself as the owner of the premises when it applied to the DOB for permits for the proposed alterations. The Hotel moves for summary judgment on all three causes of action, and for an order striking Madison's affirmative defenses.

Madison, in its cross motion, argues that the first cause of action should be dismissed because Article Fifth of the Lease allows the premises to be used solely as a luxury hotel, and for uses incidental to the running of a luxury hotel, in that the language in the first parenthetical of that Article expressly excludes the use of the premises for a cooperative or condominium. It [*4]further argues, in response to the Hotel's second cause of action, that it duly rejected the Hotel's plans when it informed the Hotel that it would not permit it to renovate the premises for a use in violation of the Lease, and that the Hotel breached the Lease by commencing construction without Madison's approval. Lastly, Madison argues that the third cause of action should be dismissed, because the Hotel falsely represented to the DOB that it was the owner of the premises, in violation of Article Fourth of the Lease (which requires the Hotel to comply with all applicable laws, ordinances and regulations), and that Madison is the only owner of the premises, under Administrative Code of the City of New York (Administrative Code) § 27-232.

" The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case.'" Kesselman v Lever House Restaurant, 29 AD3d 302, 303 (1st Dept 2006), quoting Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985). Upon the presentation of a prima facie case by the movant, the burden then shifts to the motion's opponent to offer evidentiary facts sufficient to raise a triable issue of fact. Kesselman, supra.

Both Madison and the Hotel agree that the crux of the present matter is the interpretation of Article Fifth, at 15-16, and, specifically, the phrase "[t]he Lessee covenants and agrees that it will not use or occupy the leased premises, or permit the said premises to be used or occupied for other than a luxury hotel (including a cooperative or condominium hotel such as the Hotel Carlyle)." As this is a matter of pure contract interpretation, it may be resolved by the court on a motion for summary judgment. See Mallad Construction Corp. v County Federal Savings and Loan Association, 32 NY2d 285 (1973); see also Hirsch v Food Resources, Inc., 24 AD3d 293 (1st Dept 2005)(the interpretation of unambiguous contracts is a matter of law within the province of the court). Further, "[a] written contract will be read as a whole, and every part will be interpreted with reference to the whole; and if possible it will be so interpreted as to give effect to its general purpose [internal quotation marks omitted]" (Williams Press, Inc. v State of New York, 37 NY2d 434, 440 [1975]), and the language of a contract will be interpreted according to its plain meaning. See Cellular Telephone Company v 210 East 86th Street Corp., 44 AD3d 77 (1st Dept 2007); New York Property Holding Corp. v Rosa, 26 AD3d 186 (1st Dept 2006).

This court finds no ambiguity in the Lease's pertinent language. In fact, given the "plain meaning" of the language, only one rational meaning emerges. In the phrase "[t]he Lessee covenants and agrees that it will not use or occupy the leased premises, or permit the said premises to be used or occupied for other than a luxury hotel (including a cooperative or condominium hotel such as the Hotel Carlyle)," the word "including," means that the use of the Hotel for luxury cooperatives is "included" in the uses which can be made of the premises. It does not mean "excluding" as Madison would have it. This reality is made evident by the placement of the parenthetical in the sentence, and a natural, unstrained reading of the sentence. This determination is further highlighted by the fact that Madison agrees that the word "including" in the phrase "and for all operations and uses incidental to and/or customarily found in connection with such hotel use (including but not limited to restaurants, retail stores, professional offices and transient or permanent residential uses" means that the uses in the [*5]parenthetical are "included," and, in fact, are already a part of the Hotel's operations. Consequently, the Hotel is entitled to a declaration that it is permitted to use the premises for luxury cooperative hotel units. Madison's involved discussion concerning the applicability of the Multiple Dwelling Law is irrelevant to this case. As previously quoted, the Multiple Dwelling Law is only meant to apply, according to the Lease:

if any law, ordinance or regulation is now or hereafter enacted or any event occurs which renders such hotel use illegal or impossible, the Lessee may thereafter use the premises for a Class A multiple dwelling, or if that use is rendered illegal or impossible, then for any other legal purpose."

Hotel is also entitled to a declaration that it did not violate the Lease by proceeding with alterations for which it requested approval, even though Madison did not consent to the renovation plans.

Hotel maintains that after it received the letter from Madison's attorney, who made clear that Madison would not even look at the plans, based on an unreasonable interpretation of the Lease, consent was deemed given under Article Fortieth. However, as Madison correctly notes, that provision only addresses the instance where the Lessor fails to respond within five days after receipt of a second letter requesting consent under the Lease. Here, Madison correctly notes that it did respond timely to the second request.

Nevertheless, Hotel did not violate Article Thirty-Fourth of the Lease by proceeding with alterations because contrary to Madison's position, its request was not reasonably withheld based on its interpretation of Article Fifth of the Lease. Madison's argument, that the Lease does not permit Hotel to convert a portion of the premises to cooperative hotel units, is an incorrect and strained interpretation of the Lease. Accordingly, its refusal to review the plans was unreasonable under Article Thirty-Fourth of the Lease and accordingly, Hotel did not violate the Lease by proceeding with the proposed alterations which it proffered to Madison to review.

Lastly, the Hotel is entitled to a declaration that it was not in default of the Lease when it identified itself to the DOB as the owner of the premises. Administrative Code § 27-232 defines an "owner" as "[a] person having legal title to premises; a mortgagee or vendee in possession; a trustee in bankruptcy; a receiver or any other person having legal ownership or control of the premises." See People v Leiberman, 141 Misc 2d 561 (Crim Ct, Kings County 1988). Madison argues that the Lease provided it with the right to reenter the premises at any time for purposes of inspection (Lease, Article Thirty-Sixth), thus establishing its "control" over the premises, making it the "owner under Administrative Code § 27-232. However, if, indeed, this quantum of control makes Madison an "owner under the Administrative Code," this does not alter the fact that the Hotel also has control over the premises, as net lessee.^[FN1] The Administrative Code does not limit the number of parties which may be "in control" of a premises. Consequently, this court finds that a net lessee, such as the Hotel, especially one with a lease term in excess of 120 years, is such a party. It should also be noticed that the Lease required the Hotel, and not Madison, to obtain all necessary governmental permits. Lease, Art. Thirty Fourth, subparagraph E (ii), at 91-[*6]93. Thus, under the Lease, the Hotel was given the role of "owner" for purposes of obtaining permits.

As a result of the foregoing, the Hotel is entitled to summary judgment granting it a declaration in its favor on all three of its causes of action. Madison's affirmative defenses, are without merit, and are stricken.^[FN2] Madison's cross motion for summary judgment dismissing the complaint is denied.

Accordingly, it is

ORDERED that the motion brought by Mark Hotel LLC is granted, with costs and disbursements as taxed by the Clerk of the Court; and it is further

ADJUDGED and DECLARED that Mark Hotel LLC is not in default of the Lease, because the use of the Hotel's premises for luxury cooperative hotel units is not barred by the terms of the Lease; and it is further

ADJUDGED and DECLARED that Mark Hotel LLC is not in default of the Lease for proceeding with alterations for which it requested approval, even though Madison did not consent to the renovation plans; and it is further

ADJUDGED and DECLARED that Mark Hotel LLC is not in default of the Lease as a result of its application for permits from the Department of Buildings as the owner of the premises; and it is further

ORDERED that Madison Seventy-Seventh LLC's cross motion for summary judgment is denied.

This Constitutes the Decision, Order and Judgment of the Court.

Dated: January 2, 2008

ENTER:

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J.S.C.