Citation Numbers: 5 A.D.2d 980
Judges: Botein, Breitel, Frank, McNally, Valente
Filed Date: 4/15/1958
Status: Precedential
Modified Date: 1/12/2022
Motion for leave to reargue the appeal herein and for an order modifying the decision of this court, determining said appeal, filed herein on the 18th day of February, 1958, is granted, the aforesaid decision is recalled and the order entered thereon on the 18th day of February, 1958 is vacated; and, upon sueh reargument, this appeal is disposed of as follows: This is an appeal from an order denying the defendant’s motion to dismiss the complaint (Rules Civ. Prac., rules 112, 113). The action is one in which the plaintiff, a tenant in a building owned by the defendant, seeks specific performance of an option for additional space contained in its lease with the defendant. In paragraph 31st of the agreement, the plaintiff had an absolute option for additional space until May 31, 1956. Paragraph 32d provides, in part, that “ On and after June 1, 1956 and so long as the lease shall remain in full force and effect the tenant shall have the first option to rent all or part of the remaining space”. The remaining portion of the paragraph provides for matching a bona fide offer for the rental of the space and for notice under sueh circumstances. Special Term held that an absolute option was granted under paragraph 32d and was “ defeasible only ” upon the tenant’s failure to match a bona fide offer made by another for the space. We cannot adopt that view.