The respondent seeks an Order in lieu of an answer dismissing the instant proceeding pursuant to CPLR §3211(a)(7). Respondent claims that it is no longer in possession of the space and has vacated and surrendered the premises to a new tenant pursuant to oral agreement with the managing agent. The respondent also claims since it is out of possession the appropriate proceeding for the nonpayment of rent since is a plenary action.

The petitioner opposes the motion claiming that it never consented to the assignment of the lease but that there were negotiations resulting in a proposal that was not signed by the parties. The petitioner claims there is no written assignment and the keys were not provided to anyone on its behalf and the respondent remains the tenant pursuant to the lease. The petitioner also claims the respondent was in default prior to the date it claims it vacated the premises and rent was not received or accepted from the alleged new tenant, Alejandro Guzman.

A motion seeking to dismiss pursuant to CPLR § 3211(a) (7) for failure to assert a cause of action, allows the court to accept the allegations found in the petition as true and consider affidavits submitted by the petitioner as a means of defining or correcting [*2]discrepancies in the petition, granting the petitioner favorable inferences in determining whether the facts alleged, "fit within a cognizable legal theory"(See, Four Cees Jewelry, Inc. v. 1537 Realty L.L.C., 11 Misc 3d 1056(A), 815 NYS2d 494 [NY Sup. Ct., 2005]). The respondent herein would have to establish that facts alleged in the petition are conclusory, do not actually create a cause of action, and there is no significant dispute as to whether the alleged facts are true. Only under those circumstances could the motion be granted (See, Rovello v. Orofino, 40 NY2d 633, 57 NE2d 970, 389 NYS2d 314 [1976], and Leon v. Martinez, 84 NY2d 83, 638 NE2d 511, 614 NYS2d 972 [1994]).

The petitioner claims that pursuant to the terms of the lease with the respondent, it is not terminated or expired because there was not a proper written assignment. The petitioner also claims respondent was in default before March 1, 2010 the date it allegedly surrendered the premises as indicated in the petition, and has remained in default pursuant to the lease.

In those instances where the terms of the contract are unambiguous, the contract must be enforced by its terms. This principle applies to commercial real property transactions where, "the instrument was negotiated between sophisticated, counseled business people negotiating at arms length" (See, Rocar Realty Northeast, Inc. v. Jefferson Valley Mall Limited Partnership, 38 AD3d 744, 833 NYS2d 522 [N.Y.A.D. 2nd Dept., 2007] citing to Reiss v. Financial Performance Corp., 97 NY2d 195, 738 N.Y.S.2d658, 764 NE2d 958 (2001); W.W.W. Assoc. v. Giancontieri, 77 NY2d 157, 565 NYS2d 440, 566 NE2d 639 (1990); Vermont Teddy Bear Co. v. 538 Madison Realty Co., 1 NY3d 470, 775 NYS2d 765, 807 NE2d 876 (2004) and Matter of Wallace v. 600 Partners Co.,86 NY2d 543, 634 NYS2d 669, 658 NE2d 715(1995)). The same rules of construction applicable to contracts generally apply in the interpretation of leases (See, George Backer Management Corp., v. Acme Quilting Co., Inc., 46 NY2d 211, 413 NYS2d 135, 385 NE2d 1062(1978); State v. Robin Operating Corp., 3 AD3d 757, 773 NYS2d 131[N.Y.A.D. 3rd Dept. 2004]). The courts may not by construction attempt to add or remove terms or distort the meaning of those used by the parties so that it would result in a new contract "under the guise of interpreting the writing" (See, Vermont Teddy Bear Co. v. 538 Madison Realty Co., 1 NY3d 470, supra ).

The lease between the parties at paragraph 11, titled, "Assignment, Mortgage, Etc." states,^[FN1]

"Tenant, for itself, its heirs, distributees, executors and assigns,

expressly covenants that it shall not assign, mortgage or encumber [*3]

this agreement, nor underlet, or suffer or permit the demised premises

or any part thereof to be used by others, without the prior written consent

of Owner in each instance. Transfer of a majority of the stock of a

corporate Tenant shall be deemed an assignment. If this lease be

assigned, or if the demised premises or any part thereof be underlet

or occupied by anybody other than the Tenant, Owner may, after

default by Tenant, collect rent from the assignee, under-tenant or

occupant, and apply the net amount collected to the rent herein reserved,

but no such assignment, underletting, occupancy or collection shall

be deemed a waiver of this covenant, or acceptance of the assignee,

under-tenant or occupant as tenant, or release Tenant from the further

performance by Tenant of covenants on the part of Tenant herein

contained. The consent by Owner to an assignment or underletting shall

not in any wise be construed to relieve Tenant from obtaining the express

consent in writing from the Owner to any further assignment or underletting.

The respondent claims that there is a valid assignment of the lease but has failed to produce written document signed by the parties. Respondent has not provided sufficient proof that petitioner was aware of and consented to ending the lease. Pursuant to paragraph 11 of the lease, respondent is still liable to the petitioner as a tenant. The respondent claims that the nonpayment proceeding can

can not be maintained, but has not provided sufficient evidence in support of its papers.

Accordingly, the respondent's motion is denied. The respondent will have twenty (20) days from the date of entry of this Decision and Order to serve and file an answer with the Clerk of this Court.

This constitutes the decision and order of this Court.