TSABBAR v. AULD (2001)

Order, Supreme Court, New York County (Paula Omanksy, J.), entered January 25, 2001, which, inter alia, granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

 The subject lease required board approval for subleases (see, Tsabbar v. Auld, 276 A.D.2d 442, 714 N.Y.S.2d 489), and, by its terms, could not be orally modified, rendering the oral agreement alleged by plaintiff, pursuant to which subleasing would be permissible without board approval, unenforceable (see, Joseph P. Day Realty Corp. v. Jeffrey Lawrence Assocs., 270 A.D.2d 140, 141, 704 N.Y.S.2d 587).   Read in the context of the entire lease, the lease provision requiring board consent for subleases is unambiguous as a matter of law (see, S.P. Duggal Corp. v. Aetna Cas. & Sur. Co., 181 A.D.2d 472, 473, 580 N.Y.S.2d 767, lv. denied 80 N.Y.2d 753, 587 N.Y.S.2d 905, 600 N.E.2d 632).   Contrary to plaintiff's contention, there is no evidence of partial performance by plaintiff unequivocally referable to the alleged oral agreement (see, Lebowitz v. Mingus, 100 A.D.2d 816, 817, 474 N.Y.S.2d 748,appeal dismissed 63 N.Y.2d 675), or of conduct unequivocally referable to a clear and unambiguous promise of the type required for promissory estoppel (see, 99 Realty Co. v. Eikenberry, 242 A.D.2d 215, 216, 660 N.Y.S.2d 583).   We have considered plaintiff's remaining arguments and find them unavailing.