Berghold v. Kirschenbaum

• Decision Date: 29 October 2001
• Citation: Berghold v. Kirschenbaum, 287 AD2d 673, 731 N.Y.S.2d 764 (N.Y. App. Div. 2001)
• Court: New York Supreme Court — Appellate Division
• Parties: WILLIAM F. BERGHOLD et al., Appellants,<BR>v.<BR>SAMUEL KIRSCHENBAUM et al., Respondents. (And a Third-Party Action.)

287 A.D.2d 673

731 N.Y.S.2d 764

WILLIAM F. BERGHOLD et al., Appellants,

v.SAMUEL KIRSCHENBAUM et al., Respondents. (And a Third-Party Action.)

Decided October 29, 2001.

Krausman, J. P., S. Miller, Friedmann and Schmidt, JJ., concur.

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

The plaintiffs (hereinafter the tenants) leased commercial property from the defendant 815-829 Franklin Avenue, LLC (hereinafter the landlord). The lease for the property afforded the tenants an option to renew, for either one or two 21-year periods. At issue on this appeal is the second of the two 21-year renewal periods.

The tenants seek a judgment declaring that both renewal options were simultaneously exercised in accordance with the lease prior to the expiration of the first term, and that the new base rent amount, applicable to both renewal terms, was decided at that time. The landlord, relying upon a recorded memorandum agreement which was signed on the same day as the lease, counterclaimed for a judgment declaring that the parties intended the second renewal option to be exercised no more than two years and no less than one year before the expiration of the first renewal option period, and that a new base rent was to be determined at that time.

Where "a question of intention is determinable by written agreements, the question is one of law, appropriately decided by an appellate court (see Rentways, Inc., v O'Neill...