Citation Numbers: 50 A.D.2d 790
Filed Date: 12/30/1975
Status: Precedential
Modified Date: 1/12/2022
— Order, Supreme Court, New York County, entered October 22, 1975, to the extent appealed from, reversed, on the law, and the motion for summary judgment dismissing and severing the complaint in Action No. 1 and the defenses and the counterclaims in Actions Nos. 2, 3 and 4 on grounds of the bar of the Statute of Frauds granted in all respects, with $60 costs and disbursements to appellant. The payment of full rent arrears, completed before the tenant executed the written lease expiring October 31, 1974, and the changes made by the tenant in its operations at its "finger” newsstands are not, as a matter of law, "unequivocally referable” to the alleged oral five-year renewal so as to constitute part performance. (Burns v McCormick, 233 NY 230, 232). The "changes” are nowhere delineated but are stated in broad generalities, accompanied by no valuation figures. The tenant’s actions can be explained equally as the predicate for the written one-year lease that was actually executed. It will be noted that the application to make a preferential payment of the arrears in rent recited facts to indicate that the airport locations were desirable and highly profitable, fit consideration for the lease actually written. The contention by the tenant that it intended its actions to support the five-year renewal rather than the