[*1]
Keren Tifereth Yisroel Found. v NKR Laundry II, Inc.
2013 NY Slip Op 52018(U) [41 Misc 3d 141(A)]
Decided on November 29, 2013
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on November 29, 2013
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : RIOS, J.P., PESCE and SOLOMON, JJ
2012-1056 K C.

Keren Tifereth Yisroel Foundation, Appellant, —

against

NKR Laundry II, Inc., Respondent, -and- "ABC CORP.," Undertenant.


Appeal from an order and an amended order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), dated, respectively, March 13, 2012 and April 27, 2012. The order and amended order, insofar as appealed from, denied landlord's cross motion for, in effect, summary judgment in a holdover summary proceeding.


ORDERED that the appeal from the order dated March 13, 2012 is dismissed, as that order was superseded by the amended order dated April 27, 2012; and it is further,

ORDERED that the amended order dated April 27, 2012, insofar as appealed from, is affirmed, without costs, and, upon a search of the record, tenant is awarded reverse summary judgment dismissing the petition.

In this commercial holdover proceeding commenced in September 2011, landlord alleges [*2]that tenant's lease, dated June 20, 2010, was for an indefinite term because paragraph 2 thereof states that the "term of this lease shall be for eight (8) [sic; the word years, months or days omitted] commencing with the installation of all of the Lessee's equipment." Landlord further alleges that, pursuant to Real Property Law § 232, the lease expired on October 1, 2010 and that landlord terminated the ensuing month-to-month tenancy. By amended order dated April 27, 2012, insofar as appealed from, the Civil Court denied landlord's cross motion for, in effect, summary judgment.

Real Property Law § 232 provides:

"An agreement for the occupation of real estate in the City of New York, which shall not particularly specify the duration of the occupancy shall be deemed to continue until the first day of October next after the possession commences under the agreement."

In our view, the Civil Court properly denied landlord's cross motion, as the lease, read as a whole (see Casamento v Juaregui, 88 AD3d 345, 353 [2011]), does not fail to specify the duration of the occupation. We note, in particular, that paragraph 10 of the lease provides as follows:

"10. VACANCY RATE. Should the vacancy rate exceed ten (10%) percent of the total number of apartment units in any month during the term of this lease, the Lessee shall pay to the Lessor fifty (50%) percent, less utilities, of the total gross receipts for that month rather than the flat rate rent indication herein. In the event any dwelling units in the Building have not been completed or occupied as of the date of execution hereof, and are completed or occupied subsequent to the date hereof or if the Premises are not ninety (90%) occupied, then the term of this Lease shall be extended to a date which shall be set by measuring eight (8) years from the date of completion or occupancy of such units or of ninety (90%) occupancy. In such event, the rent hereunder shall abate until said date. Such date shall be confirmed by letter, sent registered mail to Lessee" (emphasis added).

It would be incongruous to have the term of an indefinite lease extend for eight years because of a delay in the building's occupancy. Thus, as reasonable men cannot differ as to the interpretation of the lease, we affirm the denial of landlord's cross motion and grant tenant reverse summary judgment dismissing the petition.

Rios, J.P., Pesce and Solomon, JJ., concur.
Decision Date: November 29, 2013