        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1131
CA 16-00569
PRESENT: SMITH, J.P., DEJOSEPH, CURRAN, AND SCUDDER, JJ.


CLINTON STREET SOMA PROJECT, LLC,
PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

RAPID RESPONSE MONITORING SERVICES, INC.,
DEFENDANT-APPELLANT.


HANCOCK ESTABROOK, LLP, SYRACUSE (JAMES P. YOUNGS OF COUNSEL), FOR
DEFENDANT-APPELLANT.

FRANKLIN A. JOSEF, FAYETTEVILLE, FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Onondaga County (Hugh
A. Gilbert, J.), entered August 19, 2015. The order denied the motion
of defendant for summary judgment dismissing the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Defendant signed a five-year lease for a residential
loft in an industrial building in the City of Syracuse that plaintiff
was in the midst of converting. When defendant did not ultimately
take possession of the unit, plaintiff commenced the instant action
for the full balance of rent owing under the lease term. Defendant
moved for summary judgment dismissing the complaint, arguing that the
lease was void ab initio because plaintiff failed to satisfy a
condition precedent, namely, obtaining defendant’s pre-approval for
all designs, materials, and finishes in the loft. Alternatively,
defendant sought partial summary judgment limiting the damages sought
by plaintiff. Supreme Court denied the motion, and we affirm.

     We conclude that defendant failed to meet its initial burden of
proving that, as a condition precedent to enforceability of the lease,
plaintiff was obligated to secure its approval for all designs,
materials, and finishes in the loft (see generally Ruttenberg v
Davidge Data Sys. Corp., 215 AD2d 191, 196-197). Although defendant’s
obligation to pay rent was conditioned on its approval of the
“building plans,” nothing in the lease equates “building plans” with
all specifications for designs, materials and finishes. Indeed, the
lease does not provide any definition of the critical term “building
plans,” and one could certainly interpret that term to encompass only
the unit’s floor plan, which defendant indisputably saw and approved
before construction commenced. Thus, given the ambiguity in the lease
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                                                         CA 16-00569

concerning the extent of defendant’s approval rights over designs,
materials, and finishes, and given the lack of parol evidence
sufficient to authoritatively construe the ambiguous term “building
plans” as a matter of law, we conclude that the court properly denied
the motion (see White Plains Equities Assoc., Inc. v Vista Devs.
Corp., 82 AD3d 569, 569).

     Since it “remains to be determined whether . . . the [lease]” is
void ab initio in light of the alleged condition precedent, we
decline, “in effect, to render an advisory opinion concerning the
availability of [particular forms of] damages” (Matter of Flintlock
Constr. Servs., LLC v Weiss, 122 AD3d 51, 54, appeal dismissed 24 NY3d
1209; see Madison 96th Assoc., LLC v 17 E. 96th Owners Corp., 120 AD3d
409, 411).




Entered:   February 3, 2017                     Frances E. Cafarell
                                                Clerk of the Court
