Madison Murray Associates v. Perlbinder

Order, Supreme Court, New York County (Herman Cahn, J.), entered October 24, 1994, which, on the parties’ respective motions for summary judgment in a declaratory judgment action concerning the appraisal provision in the rent renewal clause of the parties’ net lease, declared in plaintiff lessee’s favor that statutory tenancies are to be considered in the appraisal of the fair market value of the premises, unanimously affirmed, with costs.

While we do not subscribe in every respect to the IAS *205Court’s construction of the lease, particularly its determination that statutory tenancies are not encumbrances as a matter of law, we agree with its conclusion that to interpret the appraisal provision as not requiring consideration of statutory tenancies would result in an inflated valuation making the annual renewal rental nearly three times the net lessee’s income from the building, thereby rendering the renewal option illusory, and is plainly unreasonable. Concur—Murphy, P. J., Rubin, Ross, Williams and Tom, JJ.