OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and a new trial granted.

Under the fire clause of a lease providing that if more than 50% of the gross area of the building is destroyed by fire and reasonably cannot be restored to its preexisting condition within 120 days the landlord may, if he decides not to rebuild, terminate the lease, the landlord may not, though the other conditions be met, terminate the lease if he has in fact decided prior to termination to rebuild (Sabre Realty Mgt. Corp. v Vitale, 94 Misc 2d 1035; Bado Realty Co. v Oetjen, 5 Misc 2d 914). Because the Trial Judge erred in refusing to consider whether the landlord acted in good faith in giving notice of termination, there must be a new trial (Donohue v City of New York, 54 Misc 415; see, Matter of Noah’s Ark v Geib, 31 AD2d 866, affg 56 Misc 2d 800).

Chief Judge Wachtler and Judges Jasen, Meyer, Simons and Kaye concur in memorandum; Judge Alexander taking no part.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, etc.