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
-2- 1131 

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