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2001 COMMERCE STREET CORP., Appellant, v. STAR ENTERPRISE et al., Respondents.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff entered into a lease whereby the defendant Star Enterprise agreed to raze and rebuild a gasoline station on the plaintiff's property. The rider to the lease agreement stated that the tenant would construct a gasoline station and food mart in accordance with a site plan dated September 23, 1994. The plaintiff commenced this action against Star Enterprise and its assignees, alleging, inter alia, that the defendants breached the lease by failing to construct a service building on the plaintiff's property as required under the lease.

The provisions of the lease are clear and unambiguous ( see Association for Children With Down Syndrome v. County of Suffolk, 262 AD2d 340; Automotive Mgt. Group v. SRB Mgt. Co., 239 AD2d 450). Under the terms of the lease, the defendants were required to construct a gasoline station and food mart in accordance with the site plan dated September 23, 1994. Since this site plan did not depict a service building, the defendants were not required to build one.

The plaintiff's contention that parol and extrinsic evidence are admissible for the purpose of establishing the existence of a mutual mistake is without merit. The plaintiff's submissions, even when viewed in the light most favorable to it, failed to establish a mutual mistake which would support a claim to reform or rescind the lease. At best, the plaintiff's negligence, or "[c]onscious ignorance," regarding the contents of the site plan ( P.K. Dev. v. Elvem Dev. Corp., 226 AD2d 200, 201), established a unilateral mistake on its part ( see New York First Ave. CVS v. Wellington Tower Assoc., 299 AD2d 205, 206).

If the plaintiff intended for the defendants to build a service building, it could have clearly stated so in the lease ( see Automotive Mgt. Group v. SRB Mgt. Co., supra). "[T]he general merger clause precludes plaintiff from arguing that the executed lease does not contain the full agreement of the parties" ( New York First Ave. CVS v. Wellington Tower Assoc., supra at 206).

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2001 COMMERCE STREET CORP. v. STAR ENTERPRISE
(Jan 10, 2005)