124 IN TO GO CORP v. 1133

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

124 IN-TO-GO CORP., etc., Plaintiff-Appellant, v. ROUNDABOUT THEATRE COMPANY, INC., Defendant, 1133 Building Corp., et al., Defendants-Respondents.

Decided: November 30, 1999

SULLIVAN, J.P., TOM, ANDRIAS and BUCKLEY, JJ. Brian J. Isaac, for Plaintiff-Appellant. Gary M. Rosenberg, for Defendants-Respondents.

Order and judgment (one paper), Supreme Court, New York County (Louise Gruner Gans, J.), entered July 12, 1999, which, to the extent appealed from, granted defendants-respondents' motion for summary judgment on plaintiff's first and sixth causes of action, granted defendants-respondents' holdover petition, declared the subject lease terminated, awarded defendants-respondents immediate possession of the premises and ordered that a warrant of eviction issue for the removal of plaintiff and all other parties named as respondents in the holdover petition, unanimously affirmed, without costs.

 The lease provision limiting plaintiff's remedy to a plenary action for consequential damages is enforceable (see, Daily News L.P. v. Rockwell Intl. Corp., 256 A.D.2d 13, 680 N.Y.S.2d 510, lv. denied 93 N.Y.2d 803, 689 N.Y.S.2d 16, 711 N.E.2d 201), and the disposition on appeal allows plaintiff the unfettered option to proceed on its claim for damages.   In any event, plaintiff had no enforceable expectation that defendant landlord would act in good faith in exercising its absolute right of termination (see, e.g., Chrysler Credit Corp. v. Dioguardi Jeep Eagle, 192 A.D.2d 1066, 596 N.Y.S.2d 230).   Because plaintiff must be given 90 days' notice of termination, the agreement is not void for lack of mutuality (cf., Dorman v. Cohen, 66 A.D.2d 411, 419, 413 N.Y.S.2d 377), and, in any event, plaintiff performed pursuant to the agreement for years, remedying the purported lack of mutuality by its conduct (see, e.g., Ferguson v. Ferguson, 97 A.D.2d 891, 470 N.Y.S.2d 715).  We have considered plaintiff's remaining arguments and find them unavailing.


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