Opinion
Argued September 5, 2000.
October 30, 2000.
In an action, inter alia, for a judgment declaring that the plaintiff timely exercised an option to renew a lease, the defendant appeals from an order of the Supreme Court, Nassau County (McCarty, J.), dated September 23, 1999, which granted the plaintiff's cross motion for partial summary judgment on the second cause of action for a declaration that it had timely exercised the option to renew.
Jaspan Schlesinger Hoffman, LLP, Garden City, N.Y. (Linda S. Agnew of counsel), for appellant.
Joel E. Wilensky, P.C., Westbury, N.Y., for respondent.
Before: LAWRENCE J. BRACKEN, J.P., LEO F. McGINITY, DANIEL F. LUCIANO, SANDRA J. FEUERSTEIN, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, and the cross motion is denied.
The Supreme Court erred in granting the plaintiff's cross motion for partial summary judgment on the second cause of action. The lease is ambiguous with respect to when the parties intended the renewal term to commence, the determination of which is pivotal in ascertaining whether the plaintiff timely exercised its option to renew (see, M.B.S. Love Unlimited v. Jaclyn Realty Assocs., 238 A.D.2d 388; Jackson Hgts. Med. Group v. Complex Corp., 222 A.D.2d 409, 411; see generally, Matter of Wallace v. 600 Partners Co., 86 N.Y.2d 543, 548; Breed v. Insurance Co. of North Amer., 46 N.Y.2d 351, 355). Accordingly, an issue of fact to be resolved at trial exists, and summary judgment is not appropriate (see, CPLR 3212[b]; Zuckerman v. City of New York, 49 N.Y.2d 557, 562). Moreover, issues of fact exist as to whether non-renewal of the lease would result in a substantial forfeiture on the part of the tenant (see, CPLR 3212[b]; Zuckerman v. City of New York, supra, at 562; see also, J.N.A. Realty Corp. v. Cross Bay Chelsea, 42 N.Y.2d 392; Dan's Supreme Supermarkets v. Redmond Realty Co., 216 A.D.2d 512; Souslian Wholesale Beer Soda v. 380-04 Union Ave. Realty Corp., 166 A.D.2d 435).