CELLULAR TELEPHONE COMPANY AT v. 210 EAST 86TH STREET CORP (2005)

Judgment, Supreme Court, New York County (Marylin G. Diamond, J.), entered June 20, 2003, which denied defendant's motion for summary judgment and granted plaintiff's cross motion for summary judgment, declaring plaintiff's exercise of the renewal option in the lease valid and effective, and directing defendant to extend the term of the lease for a second five-year term commencing January 1, 2003, unanimously affirmed, with costs.

Since the gravity of the loss was out of proportion to the gravity of the breach, the motion court properly allowed equity to intervene under the circumstances presented (see J.N.A. Realty Corp. v. Cross Bay Chelsea, 42 N.Y.2d 392, 397 N.Y.S.2d 958, 366 N.E.2d 1313 [1977];  Restoration Realty Corp. v. Robero, 87 A.D.2d 301, 450 N.Y.S.2d 825 [1982], affd. 58 N.Y.2d 1089, 462 N.Y.S.2d 811, 449 N.E.2d 705 [1983] ).   Plaintiff paid rent for each of the four months in question, inadvertently failing to pay only the nominal cost-of-living increase, and invested substantial funds to improve the premises in reliance on its right to exercise the option.   Moreover, the premises have been one of plaintiff's top producing retail locations, and defendant failed to establish that any prejudice resulted from the breach.