Opinion
November 5, 1970
Order of the Supreme Court, New York County entered on May 28, 1970, enjoining defendant pendente lite from exhibiting premises to prospective tenants and from reletting the same for a period prior to August 1, 1975, and from instituting summary proceedings, unanimously reversed on the law and the motion of plaintiff is denied. Appellant shall recover of respondent $30 costs and disbursements of this appeal. The parties herein on June 16, 1960 entered into a ten-year lease commencing August 1, 1960 and terminating July 31, 1970; the lease provided in clear language for an option to renew on six months' written notice. Inexplicably, except for apparent "negligent failure", notice to exercise such option was not sent by tenant until February 12, 1970; it was rejected on February 19, 1970. The present record does not indicate that the defendant owner was other than within its contractual rights in not accepting the option. And there is no equitable principle permitting, under the facts of this situation, the creation of a new property right in the plaintiff or the performance by court fiat of a condition precedent plaintiff did not perform. ( Fidelity Columbia Trust Co. v. Levin, 128 Misc. 838, affd. 221 App. Div. 786, affd. 248 N.Y. 551; see, also, First Nat. Stores v. Yellowstone Shopping Center, 21 N.Y.2d 630; Mico Mgt. Corp. v. Scaraggi, 59 Misc.2d 984; Doepfner v. Bowers, 55 Misc. 561.)
Concur — Stevens, P.J., Eager, McGivern and Markewich, JJ.