Lawrence Cramer, Inc. v. Aries Dewitt Corp. 90 A.D.2d 975

Order unanimously reversed, with costs, motion denied and summary judgment granted in favor of defendants in accordance with the following memorandum: Summary judgment should be granted in favor of the defendants declaring that the defendants are not obligated at this time to construct the additional rental space referred to in paragraph Thirty-third of the lease agreement. That paragraph requires the defendants lessors to construct additional space and rent it to the plaintiff lessee “contingent upon Lessee’s lease term or option period having a minimum of seven years remaining.” The lease term had only three years remaining when the plaintiff requested the additional space. The lease contains an option to renew for an additional period of 10 years, “providing, however, that Lessee’s gross sales in each of the ninth and tenth year[s] of this lease have exceeded $750,000.00.” *976Until the gross sales exceed $750,000 in the ninth and tenth years, therefore, the option to renew cannot be exercised. Hence, at the time of the request for the additional space, the plaintiff did not have the benefit of the option period, and that period cannot be considered as part of the “period having a minimum of seven years remaining.” (Appeal from order of Supreme Court, Onondaga County, Tenney, J. — summary judgment.) Present — Dillon, P. J., Callahan, Denman, Boomer and Schnepp, JJ.