Opinion
Decided January 15, 1985
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Irving Kirschenbaum, J.
Earl Barrison for appellant.
J. Stanley Shaw and Jesse I. Levine for respondents.
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 A.D.2d 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 N.Y.CRR 500.4), order reversed, etc.