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

MOBIL OIL CORPORATION, Plaintiff-Appellant, v. Alan GETTNER, et al., Defendants-Respondents.

Decided: June 26, 1997

Before SULLIVAN, J.P., and MILONAS, ELLERIN, TOM and MAZZARELLI, JJ. Marie L. McCann, for plaintiff-appellant. Robert Layton, for defendants-respondents.

Judgment, Supreme Court, New York County (Norman Ryp, J.), entered February 7, 1997, dismissing plaintiff tenant's complaint for a declaratory judgment, and bringing up for review a prior order, same court and Justice, entered on or about January 21, 1997, which, inter alia, denied the tenant's motion for a Yellowstone injunction and granted defendant landlord's cross motion for summary judgment, unanimously modified, on the law, to reinstate the complaint and declare that the landlord has the right to an early termination of the lease, and that its notice of early termination is valid, and otherwise affirmed, with costs to defendants.   The appeal from the order is unanimously dismissed as superseded by the appeal from the judgment.   The matter is remanded to the motion court for findings of fact as to the amount of the early termination payment.

The court properly held the use of the word “any” in the Early Termination Clause, paragraph 28.01 of the subject lease, to be clear and unambiguous, and thus the Development Parcel requirement was met by inclusion of parcels 100 feet from the premises fronting First Avenue, and properly denied the use of parol evidence.

However, while the court correctly disposed of the action in landlord's favor, rather than granting summary judgment dismissing the complaint, the court should have declared the rights of the parties.   Thus, the order and judgment are modified to reinstate the complaint and grant judgment in favor of defendants, declaring the Notice of Early Termination to be valid (see, Carroll v. Eno, 237 A.D.2d 102, 654 N.Y.S.2d 368).