106 Misc. 2d 941 | N.Y. Sup. Ct. | 1981
OPINION OF THE COURT
This plaintiff’s motion seeks to confirm a Referee’s report, and the granting of declaratory relief fixing her rent as determined by the Referee.
Plaintiff rented a residential apartment in defendant’s hotel for a term of two years at a rental of $2,200 per month commencing July 1,1978. According to the lease, defendant provided additional, personalized services aside from those normally provided to residential tenants. Such services included the screening of all telephone calls. The lease included the following renewal option, in a separately typed, signed rider: “Tenant has the option to renew the lease for an additional two years [sic] period at a rate to be mutually agreed upon by both landlord and tenant, to be fair and reasonable to both parties involved.” Prior to the expiration of plaintiff’s term, defendant landlord indicated its intention to seek a rental increase to $3,500 per month. Plaintiff
I
The decision of the Referee to impose sanctions on defendant for its unjustified, deliberate failure to furnish proper discovery, and its announced unwillingness to heed the court’s demand to produce the documentary evidence in question, was justified and appropriate. Not only had the parties, by their stipulation, expressly agreed to permit the Referee to resolve outstanding disputes over discovery, the matter sought, especially that dealing with operating expenses and comparability data, would have been probative of the question at issue.
II
It is settled law in New York that a covenant in a lease permitting renewal on terms “to be agreed upon” is unenforceable. (Sammis v Town of Huntington, 104 Misc 7; Martin Delicatessen v Schumacher, 52 NY2d 105.) Such a promise is the classic “agreement to agree” which is unenforceable by its very terms. (Sourwine v Truscott, 17 Hun 432.) While the law’s requirement of certainty does not mandate that the specific renewal rental, or even a specific
Under the circumstances, the Referee properly took notice of the parties’ prior lease and agreed upon prior rental as evidence of the reasonable value of such accommodations
Plaintiff’s motion to confirm the Referee’s report is granted. The underlying application for declaratory relief is granted accordingly.