January 26, 2016

In W. Oceanside Road, LLC v. Panorama Homes, Inc., 2015 WL 7474758 (2nd Dept. 2015), the Appellate Division, Second Department held that the Supreme Court correctly determined that unresolved issues of fact remained, including whether the tenant had exercised its option to renew the lease or whether it continued to occupy the premises as a month-to-month tenant.

The Plaintiff/Landlord, and the Defendant/Tenant, entered into a five-year commercial lease in 2006, which expired at the end of January, 2011.

Tenant had the option to extend the lease for an additional five-year term, and it was undisputed that the tenant continued to occupy the premises throughout 2011 and 2012.

Tenant vacated the premises in early 2013 and the landlord commenced an action to recover damages for breach of the lease claiming that the tenant had agreed to lease the premises until January 31, 2016. Defendants specifically denied that allegation in their Verified Answer.

The Landlord moved for summary judgment based on an affidavit of its manager, Jack Lerner, who stated, in relevant part, that the tenant had “duly exercised the option to extend the Lease for an additional five year period to January 31, 2016.” Defendants submitted an affidavit in opposition stating in relevant part, that “no lease renewal was signed by me or anyone else on behalf of [the tenant]” and that the tenant continued to occupy the premises “with the status of a month to month tenant.”

Based on the foregoing, the Appellate Division held that the Supreme Court correctly determined that unresolved issues of fact remained, inter alia, as to whether the tenant had exercised its option to renew the lease, or whether it continued to occupy the premises as a month-to-month tenant, and that the Supreme Court properly denied the Landlord’s motion for summary judgment.

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