Opinion
570948/05.
Decided June 22, 2006.
Landlord appeals from an order of the Civil Court, New York County, (Geoffrey D. Wright, J.), entered March 2, 2005, after a nonjury trial, which dismissed a commercial summary holdover proceeding, and from an order (same court and Judge), entered May 12, 2005, which upon reargument, adhered to the prior decision.
Orders (Geoffrey D. Wright, J.) entered March 2, 2005 and May 12, 2005, reversed, with $10 costs, petition reinstated, final judgment awarded to landlord, and matter remanded for a calculation of use and occupancy owed pursuant to the lease agreement.
PRESENT: McCOOE, J.P., DAVIS, GANGEL-JACOB, JJ
Landlord commenced this commercial holdover proceeding based upon tenant's continued possession of approximately 180,000 square feet of office space following the expiration of the parties' lease agreement. No fair interpretation of the evidence permits a finding that the parties orally modified the lease agreement or entered into a license agreement. Even assuming that the lease agreement did not contain a provision expressly requiring any modification thereof to in be writing, tenant did not establish the existence of an enforceable lease modification where no agreement was ever reached as to one of the lease's essential terms, the amount of rent to be paid by tenant ( see Martin Delicatessen v. Schumacher, 52 NY2d 105; Gotham Food Group Enters, Inc. v. Principal Mut. Life Insurance Co., 267 AD2d 48, lv dismissed 95 NY2d 825). Nor was an oral license agreement created in the absence of an agreement as to an essential term and tenant sought exclusive control and possession ( see Marina of the Future, Inc. v. City of New York, 87 AD2d 270, lv denied 57 NY2d 775; see also American Jewish Theatre, Inc. V. Roundabout Theatre Co., Inc., 203 AD2d 155). Indeed, tenant's reliance on an alleged oral lease modification or license agreement is belied by its own e-mail stating that its proposal for a lease extension was made "subject to a fully executed lease document from landlord and final approval from" tenant, contingencies which concededly did not occur. Under these circumstances, tenant's estoppel claim must also fail ( see 107 Prospect St. Ventures I, LLC. v. Eclipsys Solutions Corp., 23 AD3d 213; Aris Industries, Inc. v. 1411 Trizechahn Swig, LLC, 294 AD2d 107). In the absence of an enforceable modification or license agreement, landlord is entitled to use and occupancy in accordance with the provisions clearly set forth in the governing lease agreement.
This constitutes the decision and order of the court.