| 5 E. 41 Check Cashing Corp. v Park & Fifth Owner, LLC |
| 2007 NY Slip Op 07482 [44 AD3d 373] |
| October 9, 2007 |
| Appellate Division, First Department |
| 5 East 41 Check Cashing Corp., Appellant, v Park & FifthOwner, LLC, Respondent, et al., Defendant. |
—[*1] Greenberg Traurig, LLP, New York (H. Richard Penn of counsel), for respondent.
Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered May 4, 2007,which, upon renewal, adhered to a prior order denying plaintiff tenant's motion for a preliminaryinjunction and denying defendant landlord Park & Fifth Owner's cross motion for summaryjudgment dismissing the complaint as moot, unanimously modified, on the law, to declare thatplaintiff has not timely complied with the written notice of renewal provisions of the lease asamended, and otherwise affirmed, without costs.
Plaintiff failed to timely exercise a renewal option from its lease with defendant'spredecessor, defendant Tommy Hilfiger 485 Fifth. When the present landlord rejected plaintiff'sbelated attempt to exercise the option, plaintiff sought a declaratory judgment, inter alia, that ithad effectively exercised its option to renew for an additional five-year period.
The notice exercising the option was ineffective because it was not given within the specifiedperiod (J. N. A. Realty Corp. v Cross Bay Chelsea, 42 NY2d 392, 396 [1977]). Anequitable interest may be recognized and protected against forfeiture where the tenant has ingood faith made substantial improvements to the premises with intent to renew the lease, thelandlord is not harmed by the delay in notice, and the tenant would sustain substantial loss if thelease were not renewed. Plaintiff failed to set forth sufficient evidence of any such improvementsmade with intent to renew the lease (see Soho Dev. Corp. v Dean & DeLuca, 131 AD2d385, 386 [1987]). To the contrary, there is record evidence that the tenant made no improvementsthat would otherwise invoke equitable relief (see e.g. 95 E. Main St. Serv. Sta. v H & D AllType Auto Repair, 162 AD2d 440, 441 [1990]). Plaintiff has thus shown no equitableinterest that would warrant protection against forfeiture.
Defendant landlord demonstrated prejudice by producing evidence that it had hired anarchitect to construct an interior staircase on the premises, such plans having been drawn duringthe period when plaintiff could have exercised its option to renew until when it belatedlyattempted to exercise the option. We modify solely to declare in the landlord's favor (Lanza vWagner, 11 NY2d 317, 334 [1962], cert denied 371 US 901 [1962]).[*2]
We have considered plaintiff's other contentions and findthem unavailing. Concur—Lippman, P.J., Tom, Marlow, Gonzalez and Malone, JJ.