Opinion
No. 537.
May 12, 2009.
Order, Supreme Court, New York County (Jane S. Solomon, J.), entered November 21, 2008, which granted defendants/landlords' motion to dismiss, and declared that plaintiff/tenant had not validly exercised an option to renew its lease and defendants were not required to accept the purported exercise, unanimously affirmed, with costs.
Vishnick, McGovern Milizio LLP, Lake Success (Michael J. Stacchini of counsel), for appellant.
Eric Michael Pasinkoff, New York, for respondents.
Before: Andrias, J.P., Friedman, Buckley, Acosta and DeGrasse, JJ.
Contrary to plaintiff's contentions, the court properly determined the action based upon documentary evidence and the unambiguous lease agreement ( see Ark Bryant Park Corp. v Bryant Park Restoration Corp., 285 AD2d 143, 150). Because plaintiff had twice defaulted in payment of rent, from September 1, 2005 through February 1, 2006 and from September 1, 2006 through April 1, 2007, defendants could refuse to extend the lease pursuant to paragraph 3 of the lease modification dated November 2002, which granted the tenant the option to renew for an additional five year term "[p]rovided Tenant does not default at anytime [ sic] under the Lease." We have considered plaintiff's remaining arguments and find them unavailing.