RASCOFF/ZSYBLAT v. DIRECTORS GUILD

The motion court properly declined to invalidate the notice of termination, which, under the circumstances of this case (see, Avon Bard Co. v. Aquarian Found., 260 A.D.2d 207, 210, appeal dismissed 93 N.Y.2d 998), was as a whole sufficient adequately to advise plaintiff tenant and to permit it to frame a defense (see, Jewish Theological Seminary of Am. v. Fitzer, 258 A.D.2d 337, 338). The plain language of the renovation provision of the governing termination clause entitled defendant landlord to issue a notice of termination once it had entered into a "contract" to "demolish, renovate and/or develop the building and/or the premises", and it is clear, as a matter of law, that defendant did in fact enter into such a contract. Since the subject termination clause is not ambiguous (see, Reiss v. Fin. Performance Corp., 97 N.Y.2d 195, 2001 N.Y. LEXIS 3815;Sutton v. E. River Sav. Bank, 55 N.Y.2d 550, 554), extrinsic evidence is not appropriately employed in its construction (see, id.). The motion court properly declined to give effect to a plainly erroneous dismissal order by a prior IAS Justice, which, if given literal effect at this time, would preclude all of plaintiffs' claims and arguments. Summary judgment on the third counterclaim was proper, as was the discretionary award of use and occupancy (see, e.g., Ministers, Elders and Deacons of Reformed Protestant Dutch Church of City of New York v. 198 Broadway, 152 Misc.2d 936, 942). We have considered plaintiffs' remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.