Robert L. GELTZER, as Chapter 7 Trustee of Bombora House, Inc., et al., Petitioners-Respondents, v. DuFOUR PASTRY KITCHENS, INC., Respondent-Appellant.
Order of the Appellate Term of the Supreme Court, First Department, entered September 23, 2005, affirming an order of Civil Court, New York County (Donna G. Recant, J.), entered on or about July 23, 2004, which directed a hearing to determine the appropriate rental amount for the renewal term of respondent-appellant's sublease, unanimously affirmed, with costs.
The sublease specifically incorporated the provisions of the overlease, which effectively set rent for the renewal period as “fair market” rent (see B. Boman & Co., Inc. v. Professional Data Mgt., Inc., 218 A.D.2d 637, 631 N.Y.S.2d 19  ). Unlike the boilerplate provision at issue in NPS Engrs. & Constructors, Inc. v. Underweiser & Underweiser, 73 N.Y.2d 996, 541 N.Y.S.2d 344, 539 N.E.2d 100 , modfg. 141 A.D.2d 412, 529 N.Y.S.2d 493 for reasons stated in dissenting mem., the provision in the sublease here incorporating the overlease was specifically modified by the parties to exclude certain overlease provisions. The exclusions, however, did not encompass the overlease's provision respecting the rental amount for the renewal period. Indeed, the sublease, apart from its incorporation of the overlease terms, makes no provision respecting the rental amount for the renewal period.