Tsabbar v. Auld

Dec 18, 2001
Versions:289 A.D.2d 115
735 N.Y.S.2d 31
2001 N.Y. App. Div. LEXIS 12264

Order, Supreme Court, New York County (Paula Omansky, J.), entered January 25, 2001, which, inter alia, granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

The subject lease required board approval for subleases (see, Tsabbar v Auld, 276 AD2d 442), and, by its terms, could not be orally modified, rendering the oral agreement alleged by plaintiff, pursuant to which subleasing would be permissible without board approval, unenforceable (see, Day Realty Corp. v Lawrence Assocs., 270 AD2d 140, 141). Read in the context of the entire lease, the lease provision requiring board consent for subleases is unambiguous as a matter of law (see, Duggal Corp. v Aetna Cas. & Sur. Co., 181 AD2d 472, 473, lv denied 80 NY2d 753). Contrary to plaintiffs contention, there is no evidence of partial performance by plaintiff unequivocally referable to the alleged oral agreement (see, Lebowitz v Mingus, 100 AD2d 816, *116817, appeal dismissed 63 NY2d 675), or of conduct unequivocally referable to a clear and unambiguous promise of the type required for promissory estoppel (see, 99 Realty Co. v Eikenberry, 242 AD2d 215, 216). We have considered plaintiffs remaining arguments and find them unavailing. Concur — Mazzarelli, J. P., Andrias, Ellerin and Rubin, JJ.