PIG RESTAURANT INC v. ODELIA ENTERPRISES CORP (1997)

Supreme Court, Appellate Division, First Department, New York.

The PIG RESTAURANT, INC., Plaintiff-Appellant, v. ODELIA ENTERPRISES CORP., Defendant-Respondent.

Decided: November 13, 1997

Before SULLIVAN, J.P., and MILONAS, WALLACH, WILLIAMS and TOM, JJ.

Allan J. Berlowitz, for plaintiff-appellant. Solomon E. Antar, for defendant-respondent.

Order, Supreme Court, New York County (Donald Diamond, Special Referee), entered August 14, 1995, which sustained defendant's notice to terminate plaintiff's lease and vacated a Yellowstone injunction and order, same court (Marian Lewis, Special Referee), entered April 16, 1997, which denied plaintiff's application for a new trial, unanimously affirmed, with costs.

The Special Referee properly determined that defendant's notice was legally effective since defendant could terminate plaintiff's lease pursuant to Article 9(d) thereof after the demised premises were “rendered wholly unusable” as the result of a fire (see, Mawardi v. Purple Potato, 187 A.D.2d 569, 590 N.Y.S.2d 132). Since the lease provision was written in the disjunctive, there was no need for defendant to indicate whether it intended to rebuild or restore the premises. Inasmuch as a subsequent filing of building plans was immaterial and did not affect defendant's right to terminate the lease, plaintiff's motion for a new trial was properly denied.

MEMORANDUM DECISION.

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