200 Fifth Avenue Associates v. L2 Productions, Inc. , 753 N.Y.S.2d 33 ( 2002 )

Order, Supreme Court, New York County (Paula Omansky, J.), entered January 15, 2002, which, in an action to recover rent or use and occupancy, denied plaintiff s motion for summary judgment on its cause of action for rent, unanimously affirmed, without costs.

Although defendant tenant admittedly signed the SVs-year lease on which plaintiff landlord sues and took possession of and occupied the premises for more than two years, plaintiff, allegedly due to clerical error, did not deliver an executed copy of the lease to the tenant, did not enter the tenant in its computer system, and did not request or receive any rent from the tenant until at or about the time the tenant advised that it was vacating the premises. The IAS court correctly held that an issue of fact exists as to whether the parties intended to be bound by the lease (see 219 Broadway Corp. v Alexander’s, Inc., 46 NY2d 506, 512), in view of correspondence between them indicating that there had been no meeting of the minds with respect to certain material terms of the lease. In addition, factual questions remain as to the nature of defendant’s occupancy in the event the lease is held invalid. Concur — Tom, J.P., Rosenberger, Friedman and Gonzalez, JJ.