| 410 BPR Corp. v Chmelecki Asset Mgt., Inc. |
| 2008 NY Slip Op 04464 [51 AD3d 715] |
| May 13, 2008 |
| Appellate Division, Second Department |
| 410 BPR Corporation et al., Respondents, v ChmeleckiAsset Management, Inc., et al., Appellants. |
—[*1] Donald S. Mazin, Larchmont, N.Y., for respondents.
In an action, inter alia, for a judgment declaring that the plaintiff 410 BPR Corporationproperly exercised its option to renew a lease and that a valid lease extension exists, thedefendants appeal, as limited by their brief, from so much of an order of the Supreme Court,Westchester County (Rudolph, J.), entered May 3, 2007, as denied that branch of their crossmotion which was for partial summary judgment, in effect, declaring that the plaintiff 410 BPRCorporation did not properly exercise its option to renew the lease and that a valid leaseextension does not exist.
Ordered that the order is reversed insofar as appealed from, on the law, with costs; thatbranch of the defendants' cross motion which was for partial summary judgment is granted; andthe matter is remitted to the Supreme Court, Westchester County, for the entry of a judgment,inter alia, declaring that the plaintiff 410 BPR Corporation did not properly exercise its option torenew the lease and that a valid lease extension does not exist.
The plaintiff corporation and the defendant corporation are the tenant and the landlord,respectively, under a lease with respect to certain real property located in Mamaroneck. A rider tothe subject lease contained a provision granting the tenant an option to renew the lease "for anadditional term to be agreed upon by the parties." The renewal provision also called for theparties to renegotiate security and rent for any such renewal term six months before theexpiration of the lease.
Prior to and subsequent to the expiration date of the lease, negotiations took place between[*2]the parties and their attorneys regarding renewal of the lease.Although various writings were exchanged between the parties and their attorneys, no formalagreement was ever consummated. While the negotiations were taking place, the tenant remainedat the premises and continued to pay rent to the landlord at an increased rate as provided for inone of the landlord's renewal offers. Ultimately, the landlord ended the negotiations, returned thetenant's rent checks for the months subsequent to the lease expiration date, and served the tenantwith a 30-day notice to terminate.
The plaintiffs commenced this action seeking, inter alia, a judgment declaring that the tenantproperly exercised its option to renew the lease and that a valid lease extension exists, claimingthat the parties had, in fact, reached an agreement as to the terms of a renewal lease. Thedefendants interposed an answer, asserting, among other things, the statute of frauds as anaffirmative defense.
"[I]n this State . . . a mere agreement to agree, in which a material term is leftfor future negotiations, is unenforceable" (Joseph Martin, Jr., Delicatessen v Schumacher,52 NY2d 105, 109 [1981]; see BenedictRealty Co. v City of New York, 45 AD3d 713, 714 [2007]; Frankel v Ford Leasing Dev. Co., 7AD3d 757 [2004]; WilliamsburgBus. Park v Brooklyn Navy Yard Dev. Corp., 2 AD3d 439, 440 [2003]). Here, thedefendants established their prima facie entitlement to judgment as a matter of law fordeclaratory relief by submitting, inter alia, a copy of the subject lease and rider, whichdemonstrated that the subject renewal provision constitutes an unenforceable agreement to agree(see Joseph Martin, Jr., Delicatessen v Schumacher, 52 NY2d at 110-111; Demisay vAllied Clove Lakes Co., 91 AD2d 1032, 1033 [1983]; Mulcahy v Rhode Island Hosp.Trust Natl. Bank, 83 AD2d 846, 847 [1981]; cf. Kaplan v Lippman, 75 NY2d 320[1990]). In that regard, the defendants also submitted an affidavit of the landlord's representative,supported by documentary evidence, in which the representative averred that the landlord and thetenant never reached an agreement regarding renewal of the lease and that a renewal lease neverwas signed by the parties.
In opposition to the defendants' prima facie showing, the plaintiffs failed to raise an issue offact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Contrary to the plaintiffs'contention, the correspondence exchanged between the parties and their attorneys did notestablish a binding agreement between the landlord and the tenant as to the terms of a renewallease (see Degree Sec. Sys. v F.A.B. Land Corp., 302 AD2d 555, 556 [2003]; Brois vDeLuca, 154 AD2d 417, 418 [1989]). Absent any other written proof that the landlord andtenant reached a mutual understanding and agreement regarding the terms of a renewal lease, theplaintiffs' claim to that effect is barred by the statute of frauds (see General ObligationsLaw § 5-703 [2]; Urgo v Patel, 297 AD2d 376, 377 [2002]). Furthermore, since theplaintiffs also failed to show that the parties ever reached a complete oral agreement as to thematerial terms of a lease extension, there is no merit to their contention that the doctrine ofpartial performance takes the alleged agreement outside the scope of the statute of frauds (seeMacKenzie v MacKenzie, 13 AD3d 1010 [2004]; Venture Mfg. [Singapore] v Matco Group, 6 AD3d 850 [2004]).
Since this is, in part, a declaratory judgment action, we remit the matter to the SupremeCourt, Westchester County, for the entry of an appropriate declaratory judgment (see Lanza vWagner, 11 NY2d 317, 334 [1962], appeal dismissed 371 US 74 [1962], certdenied 371 US 901 [1962]).
The plaintiffs' remaining contentions are without merit. Mastro, J.P., Ritter, Carni and Eng,JJ., concur.