Solow Management Corp. v. Hochman

• Decision Date: 11 March 1993
• Citation: Solow Management Corp. v. Hochman, 594 N.Y.S.2d 751, 191 A.D.2d 250 (N.Y. App. Div. 1993)
• Parties: SOLOW MANAGEMENT CORP., Plaintiff-Appellant, v. Neal S. HOCHMAN, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 751

594 N.Y.S.2d 751

191 A.D.2d 250

SOLOW MANAGEMENT CORP., Plaintiff-Appellant, v. Neal S. HOCHMAN, Defendant-Respondent.

Supreme Court, Appellate Division First Department.

March 11, 1993.

Before SULLIVAN, J.P., and MILONAS, ASCH and RUBIN, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Burton Sherman, J.), entered June 4, 1992, which, inter alia, granted defendant's motion for summary judgment pursuant to CPLR § 3212 dismissing plaintiff's complaint and on defendant's counterclaim for legal fees, unanimously affirmed, without costs.

The IAS court properly determined that plaintiff's exercise of its 30-day lease option in February, 1991, more than three months after the option had expired, was untimely and of no effect and that plaintiff's demand that the defendant find a substitute tenant willing to rent the subject apartment "as is" subject to the apartment restoration Rider in the parties' lease, was an invalid, unilateral attempt by the plaintiff to orally modify the parties' lease in violation of the lease provision specifically prohibiting such an oral modification, as well as the Statute of Frauds provision in General Obligations Law § 15-301(1).

Summary judgment in defendant's favor is particularly appropriate herein where it is undisputed that the defendant complied with the unambiguous provisions of the restoration Rider in the parties' lease agreement requiring the defendant to notify plaintiff of his intention to vacate the subject apartment 180 days prior to the expiration of the lease by written notice thereof on October 30, 1990 and paid rent through the expiration of the lease term, while the plaintiff admittedly failed to notify the defendant within 30 days thereafter whether the plaintiff elected to require the defendant to restore the apartment to its original condition in compliance with the lease rider by removing the designer-quality improvements to the subject apartment installed by a prior tenant. Where, as here, the case turns upon an unambiguous written agreement and notice, and the material facts of the case are not in dispute, summary judgment was properly granted (see, Bethlehem Steel Co. v. Turner Construction Co., 2 N.Y.2d 456, 460, 161 N.Y.S.2d 90, 141 N.E.2d 590; Tantleff v. Truscelli, 110 A.D.2d 240, 244-245, 493 N.Y.S.2d 979 affd, 69 N.Y.2d 769, 513 N.Y.S.2d 113, 505 N.E.2d 623).

There is nothing in the record to indicate that the defendant either expressly or implicitly waived the lease rider requirement that the plaintiff...