Opinion
570407/05.
Decided September 29, 2006.
Tenant appeals from an order of the Civil Court (Joan M. Kenney, J.), dated May 11, 2005, which denied its motion for summary judgment and granted landlord's cross motion to the extent of dismissing tenant's third and fifth affirmative defenses, and landlord cross appeals from the same order insofar as it denied its motion to dismiss tenant's fourth affirmative defense. Tenant further appeals from a final judgment of the same court (Anil C. Singh, J.), entered on or about February 2, 2006, after a nonjury trial, which awarded possession to landlord in a commercial holdover proceeding.
Final Judgment (Anil C. Singh, J.), entered on or about February 2, 2006, affirmed, with $25 costs. Appeal and cross appeal from the order (Joan M. Kenney, J.), dated May 11, 2005, dismissed as subsumed in the appeal from the final judgment.
PRESENT: McKEON, P.J., McCOOE, SCHOENFELD, JJ.
The record supports the trial court's finding that there was no enforceable renewal option and, indeed, the tenant does not now challenge the court's determination on sufficiency or weight of the evidence grounds. We find no reversible error in any of the court's evidentiary rulings. The trial court appropriately permitted the rebuttal testimony of landlord's witnesses ( see Rigatti v. Leventhal, 181 AD2d 726). It was not until after tenant presented evidence of a purported option to renew contained in an additional lease rider allegedly executed by the landlord's deceased principal that it reasonably became apparent that the testimony was necessary to refute this claim ( see Herrera v. V.B. Haulage Corp., 205 AD2d 409). Nor did the court err in admitting the governing lease agreement under the business record exception to the hearsay rule ( see DeLeon v. Port Authority of New York and New Jersey, 306 AD2d 146; Tuscan Realty Corp. v. O'Neill, 789 Misc 2d 349) and, based upon the record developed at trial, the court appropriately found that landlord did not waive the provisions of CPLR 4519 nor "open the door" to conversations between tenant and landlord's deceased principal concerning the purported option to renew ( see Wood v. Medwin, 52 NY2d 139).
We have considered and rejected tenant's remaining arguments.
This constitutes the decision and order of the court.
I concur.