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

Robert L. GELTZER, as Chapter 7 Trustee of Bombora House, Inc., et al., Petitioners-Respondents, v. DuFOUR PASTRY KITCHENS, INC., Respondent-Appellant.

Decided: November 28, 2006

MAZZARELLI, J.P., SAXE, MARLOW, SULLIVAN, WILLIAMS, JJ. Kucker & Bruh, LLP, New York (William D. Hummell of counsel), for appellant. Bryan Cave LLP, New York (Suzanne M. Berger of counsel), for Robert L. Geltzer, respondent. Victor & Bernstein, P.C., New York (Donald M. Bernstein of counsel), for 25 Ninth Avenue Corporation, respondent.

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 [1995] ).   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 [1989], 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.