By order to show cause filed on March 5, 2008, petitioner-tenant, the owner and operator of a restaurant at 1260 Amsterdam Avenue, seeks an order restoring it to possession of basement premises located at 1270 Amsterdam Avenue and granting it a final judgment of possession. Respondent-landlord opposes the petition and cross-moves for an order granting it summary judgment dismissing the petition with prejudice and awarding it a final judgment of possession and warrant of eviction. For the following reasons, the petition is granted to the extent of putting the matter over for trial and the cross-motion is denied.

I. FACTS [*2]

By lease dated September 3, 2002, respondent's predecessor-in-interest, Pomeroy, Inc. (Pomeroy), leased to petitioner "the South Store in the building known as 1260 Amsterdam Avenue" (1260 Amsterdam) from August 1, 2002 to July 31, 2012. (Affirmation of Christopher Halligan, Esq., dated Mar. 23, 2008 [Halligan Aff], Exh. A).

Paragraph 14 ("Vault, vault space, area") of the lease provides as follows:

No vaults, vault space or area, whether or not enclosed or covered, not within the property

line of the building is leased hereunder, anything contained in or indicated on any sketch, blue print or plan, or anything contained elsewhere in this lease to the contrary notwithstanding . . . All vault space and all such areas not within the property line of the building, which Tenant may be permitted to use and/or occupy, is to be used and/or occupied under a revocable license . . .

Exhibit B of the lease, "Diagram of Demised Premise (Basement)," is a floor plan which includes a space denoted in hand as "Storage for 1260 Amsterdam Ave. Store South." (Id.). That space is located in the basement of 1270 Amsterdam Avenue (1270 Amsterdam), which was also owned by Pomeroy. Petitioner's president negotiated for the use of that space for the storage of food, beverages, and supplies (Affidavit of Angelo Sessa, dated Mar. 4, 2008 [Sessa Affid.]), and the floor plan was drafted and incorporated into the lease. (Id.).

In Paragraph 97 of the rider to the lease, entitled "Basement Space," the parties agreed that petitioner's occupancy of the space, "if any," is subject to certain terms and conditions.^[FN1] [*3](Id.). And pursuant to paragraph 54 of the rider, if a provision in the rider contradicts or is otherwise inconsistent with the lease, the rider governs and the contradicted or inconsistent provision is deemed amended accordingly. (Id.).

Petitioner spent more than $10,000 in cleaning and improving the space and utilized it with Pomeroy's knowledge and consent from October 2002 to November 9, 2006, when 1270 Amsterdam was sold to respondent.

II. PLEADINGS

Petitioner bases its tenancy of "all rooms, South Basement, in the building known [as] and located at 1270 Amsterdam Avenue" on the aforementioned lease and alleges that after respondent acquired title to 1270 Amsterdam, it padlocked the basement space, refused to grant it access to the space, issued a notice to quit, and continues to exclude it from the space.

In its verified answer, dated March 18, 2008, respondent denies petitioner's allegations but admits that it owns the building at 1270 Amsterdam. It interposed a counterclaim, alleging that petitioner failed to quit upon the expiration of the notice to quit and that it is entitled to possession of the premises, and it seeks a final judgment of possession.

Petitioner argues that as Exhibit B of the lease reflects its tenancy of the basement space, it is not a mere licensee, and it denies that the space constitutes "vault space." Sessa alleges that the space was specifically negotiated by him and that without it, he is unable to run his restaurant at 1260 Amsterdam. He explains that Pomeroy assessed no rent for the space because it was rat-infested, and that without a provision for monthly rent for the space, Pomeroy expected that [*4]petitioner would be unable to withhold rent for the restaurant premises on account of the rats. (Sessa Affid.).

Respondent denies petitioner's tenancy of the basement space and observes that as petitioner used it gratuitously, it is a mere licensee whose right to possess and occupy the space expired when respondent purchased 1270 Amsterdam or when the 10-day notice to quit expired. It interprets paragraph 14 of the lease as pertaining to any area not within the property line of 1260 Amsterdam, and it denies that the space is appurtenant to the lease. Absent any remaining interest in the premises, respondent claims that petitioner is not entitled to be restored to possession.

At oral argument, petitioner maintained that if not part of the demised premises pursuant to the lease, the space was appurtenant to it, as it had improved it and used it for the necessary storage of restaurant supplies. Petitioner's counsel also alleged that petitioner had built up the space by adding shelving to it.

The lease contains two provisions and a diagram which pertains to the basement space. They must be analyzed in order to determine whether the space is part of the demised premises.

If an agreement contains ambiguous language, extrinsic evidence is needed to prove the parties' intent in including such language. (Pearson v Parkside Ltd. Liability Co., 44 AD3d 833 [2d Dept 2007]). In such a case, the issue of the proper construction of the contract presents a question of fact, which the court may not resolve on a summary judgment motion. (Amusement Bus. Underwriters v Am. Intl. Group, Inc., 66 NY2d 878 [1985]). Whether a contract, such as a lease, is ambiguous is a question of law. (Chimart Assocs. v Paul, 66 NY2d 570, 573 [1986]). A lease is ambiguous when, "on its face [it] is reasonably susceptible of more than one interpretation." (Id.).

Paragraph 14 provides that vaults, vault spaces or areas outside the leased premisesare not part of the leased premises but are held under a revocable license, notwithstanding any sketch, blue print or plan, or anything contained elsewhere in the lease to the contrary. Respondent reasonably construes this provision as encompassing the basement space. Petitioner, on the other hand, reasonably construes the provision as inapplicable to the basement space, and reasonably proffers the diagram in the rider as evidence that the space is part of the demised premises.

Given the reasonableness of each party's construction of the lease, I find that it is ambiguous. (See eg Kohman v Rochambeau Realty & Dev. Corp., 17 AD3d 151 [1st Dept 2005] [in determining whether lease included yard as part of premises, court correctly found that each party's interpretation of key words in lease was reasonable and properly denied each summary judgment]; Ben-David v Mateo, 128 AD2d 398 [1st Dept 1987] [where lease described premises only as store, and basement mentioned in lease in only one provision, court found plausible parties' conflicting interpretations as to whether basement included in lease]).

The parties' construction of the lease is not necessarily dispositive. Thus, even if an agreement is denominated a license, it will be construed as a lease if a landlord and tenant relationship actually exists. (1 Dolan, Rasch's Landlord and Tenant - Summary Proceedings § 4:1 [4th ed]; The Statement, Inc. v Pilgrim's Landing, Inc., 49 AD2d 28, 33 [4th Dept 1975]; [*5]Federation of Organizations, Inc. v Bauer, 6 Misc 3d 10 [App Term, 9th & 10th Jud Dists 2004]).

A lease is created when the lessor grants "an estate in a designated portion of real property," with "exclusive possession of such designated portion of real property for a specified term." (1 Dolan, Rasch's Landlord and Tenant - Summary Proceedings § 1:2). A specific rental amount may also characterize a lease (Finkelstein and Ferrara, Landlord and Tenant Practice in New York § 3:23 [West's NY Prac Series 2004]), but it is not the sine qua non of one (1 Dolan, Rasch's Landlord and Tenant - Summary Proceedings § 4:1). A license, by contrast, does not convey exclusive possession and control of premises, and it may be cancelled at will and without cause. (Finkelstein and Ferrara, Landlord and Tenant Practice in New York § 3:23; Am. Jewish Theatre, Inc. v Roundabout Theatre Co., Inc., 203 AD2d 155, 156 [1st Dept 1994]).

Whether an instrument constitutes a lease may be discerned from "the manifest intent of the parties, gleaned from a consideration of the entire agreement involved . . ." (1 Dolan, Rasch's Landlord and Tenant - Summary Proceedings § 4:1). The burden of proving that the instrument is a lease rests on petitioner (Id. [burden of proving landlord/tenant relationship rests on party asserting it]).

Here, the rider contains a diagram of the basement space which indicates that the space is part of the demised premises and thus, leased to petitioner, and paragraph 97 of the rider reflects that the parties intended the space to be used exclusively by petitioner who also agreed in subparagraph viii to make and maintain certain physical conditions in the space "at all times during the term of th[e] lease agreement." (Exh. A).

Although these terms may characterize a lease(Nextel of New York, Inc. v Time Mgt. Corp., 297 AD2d 282 [2d Dept 2002] [tenant's occupation of certain space was described in plans expressly annexed to lease and its access to space was exclusive]; Polner v Arling Realty Inc., 194 Misc 831 [Sup Ct, Kings County 1949] [finding that cellar space was part of lease rather than license where exclusive possession of specific space was given to tenant and agreement contained description of specific space to be occupied by tenant]), the parties did not agree as to the length of the term that petitioner was permitted to use the space, and it is undisputed that petitioner paid no rent for it. Such omissions, notwithstanding the predominance of the rider over the lease pursuant to paragraph 54, constitute evidence of a license.

As the lease is ambiguous, extrinsic evidence may not be considered on the instant applications. (22 NY Jur 2d § 212 [where meaning of contract is ambiguous, construction is generally for trier of fact; summary judgment inappropriate]; Kohman, 17 AD3d at 152 [as lease provision is ambiguous, intent of parties must be resolved at trial from disputed evidence or inferences outside written words]).

If the space is not part of the demised premises and is held pursuant to a license, it must still be determined whether the space is appurtenant to the leased premises.

An appurtenance is a right and privilege which is essential or reasonably necessary to the full beneficial use and enjoyment of the leased property, which may not be revoked or otherwise terminated until the lease ends. A tenant's mere convenience in its use and enjoyment of the space does not create an appurtenance. (1 Dolan, Rasch's Landlord and Tenant - Summary Proceedings §§ 7:5, 7:8). [*6]

An appurtenance must be an integral and material part of the leased premises. (1 Dolan, Rasch's Landlord and Tenant - Summary Proceedings § 7:6). Consequently, land that is not part of the leased premises is not appurtenant to land that is part of the leased premises, even if owned by the same landlord. (Id., § 7:9).

As it is undisputed that the 1270 Amsterdam is not part of 1260 Amsterdam, but is an entirely different building, the basement space at 1270 Amsterdam is not appurtenant to the restaurant space leased by petitioner at 1260 Amsterdam, even though both buildings were once owned by the same landlord. (See Kingsway Realty & Mortgage Corp. v Kingsway Repair Corp., 223 AD 281 [2d Dept 1928] [appurtenance to lease does not include interest in adjoining lands even though owned by common owner]).

Although petitioner has sustained its burden of proving, prima facie, that the space is part of the demised premises and that the nature of its occupancy of the space was that of a lessee, respondent has raised issues of fact sufficient to require a trial.

Although respondent has sustained its burden of proving, prima facie, that the space is not part of the demised premises or appurtenant to the lease and that petitioner occupies the space under a license, petitioner has raised issues of fact sufficient to require a trial of these issues.

Accordingly, the petition is granted to the extent of putting the matter over for trial and respondent's cross-motion for summary judgment is denied. The parties are directed to proceed to trial on May 12, 2008 at 9:30 a.m. in Part 52, room 1166, at 111 Centre Street, New York, New York.

This constitutes the decision and order of the court.

______________________________

Barbara Jaffe, JCC

DATED:April 24, 2008

New York, New York