Pig Restaurant, Inc. v. Odelia Enterprises Corp.

Full title: PIG RESTAURANT, INC., Appellant, v. ODELIA ENTERPRISES CORP., Respondent

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Nov 13, 1997

244 A.D.2d 196 (N.Y. App. Div. 1997)

664 N.Y.S.2d 29

Opinion

November 13, 1997

Appeal from the Supreme Court, New York County (Donald Diamond, Spec. Ref.).

The Special Referee properly determined that defendant's notice was legally effective since defendant could terminate plaintiff's lease pursuant to article 9 (d) thereof after the demised premises were "rendered wholly unusable" as the result of a fire (see, Mawardi v. Purple Potato, 187 A.D.2d 569). Since the lease provision was written in the disjunctive, there was no need for defendant to indicate whether it intended to rebuild or restore the premises. Inasmuch as a subsequent filing of building plans was immaterial and did not affect defendant's right to terminate the lease, plaintiff's motion for a new trial was properly denied.

Concur — Sullivan, J. P., Milonas, Wallach, Williams and Tom, JJ.