On appeal numbered 05-055, tenant appeals from an order of the Civil Court, New York County (Jeffrey K. Oing, J.), entered on or about May 3, 2004, which denied his motion for summary judgment and granted landlord's cross motion to the extent of awarding it partial summary judgment on the holdover petition. On appeal numbered 05-029, landlord appeals from an order of the Civil Court, New York County (Anil C. Singh, J.), entered on or about June 30, 2004, after a framed issue hearing, which dismissed the holdover petition upon a finding that tenant's exercise of the lease renewal option was valid and effective.

PER CURIAM:

Order (Anil C. Singh, J.), entered on or about June 30, 2004, reversed, without costs, petition reinstated, and merits determination vacated. Order (Jeffrey K. Oing, J.), entered on or about May 5, 2004, modified to deny landlord's cross motion for summary judgment and to remand for further proceedings; as modified, order affirmed, without costs. [*2]

The holdover summary proceeding is not ripe for summary disposition, since the record raises triable issues as to the duration of the governing commercial lease agreement. The first page of the standard store lease — a lease negotiated and executed by the parties without the aid of counsel — contains initialed, handwritten notations indicating that the lease term was for 20 years, commencing December 1, 1991 and expiring November 30, 2011. However, paragraph 40 of the parties' lease rider sets forth a rent schedule "for a period of twelve years," and goes on to provide that "tenant shall have the right to renew the lease for an additional eight years ...", with the rent "continu[ing] to increase" each year at the same rate specified in connection with the initial 12-year term set out in the rider. Where, as here, the language of a contract is ambiguous, its construction presents a question of fact which may not be resolved by the court on a motion for summary judgment (Jackson Hgts. Med. Group v Complex Corp., 222 AD2d 409, 411 [1995]). Given the lease ambiguity as to whether the parties intended a 12-year term with an eight-year renewal option, or a 20-year term with an eight-year renewal option (see Expedite NYC, Inc. v 1600 Stewart Ave., 276 AD2d 740 [2000]), the dispute may not be resolved without the aid of extrinsic evidence.

In view of our denial of landlord's motion for summary judgment and the pendency of the lease duration issue, we take no position with regard to the equitable issues addressed at the hearing directed in the court's summary judgment order.
William P. McCooe, J. (concurring)

I would reach the merits on the framed equitable issue and dismiss without prejudice to a new trial upon the grounds of the inadequacy of proof as to the cost of the renovations made to the subject premises, the inadequacy of proof that the landlord would not be prejudiced if relief were granted and whether the landlord knew that there was a dispute as to the terms of the lease when it entered into a lease with a new tenant (Dan's Supreme Supermarkets, Inc. v Redmont Realty Co., 240 AD2d 460 [2d Dept 1997], lv denied 91 NY2d 809 [1998]).

This constitutes the decision and order of the court.

Decision Date: May 26, 2006