NEXTEL OF NEW YORK INC v. TIME MANAGEMENT CORPORATION

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

NEXTEL OF NEW YORK, INC., Appellant-Respondent, v. TIME MANAGEMENT CORPORATION, Respondent-Appellant.  (Matter No. 1).

IN RE: Nextel of New York, Inc., Appellant-Respondent, v. Time Management Corporation, Respondent-Appellant.  (Matter No. 2).

Decided: August 05, 2002

FRED T. SANTUCCI, J.P., MYRIAM J. ALTMAN, SONDRA MILLER and LEO F. McGINITY, JJ. Jaffe, Segal & Ross, New York, NY, (Burton R. Ross of counsel), for appellant-respondent. Carole A. Burns, Mineola, NY, (Anthony W. Russo of counsel), for respondent-appellant.

In (1) an action for a judgment declaring the parties' rights and obligations under a commercial lease, and (2) a related unlawful eviction proceeding which was removed from the District Court, Nassau County, to the Supreme Court, Nassau County, the plaintiff appeals from an order of the Supreme Court, Nassau County (Alpert, J.), dated May 24, 2001, and the defendant cross-appeals from so much of the same order as granted the plaintiff's motion for an injunction.

ORDERED that the appeal is dismissed as abandoned (see 22 NYCRR 670.8 [e] );  and it is further,

ORDERED that the order is affirmed insofar as cross-appealed from;  and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

 A Yellowstone injunction may be awarded to a commercial tenant allegedly in default under its lease, to toll the expiration of the contractual cure period in the lease (see First Nat. Stores v. Yellowstone Shopping Center, 21 N.Y.2d 630, 290 N.Y.S.2d 721, 237 N.E.2d 868).   The tenant must show (1) that it holds a commercial lease, (2) that it has received notice of default, notice to cure, or threat of termination, (3) that it has moved for injunctive relief prior to the termination of the lease, and (4) it is ready and able to cure the alleged default by any means short of vacating the premises (see Graubard Mollen Horowitz Pomeranz & Shapiro v. 600 Third Ave. Assocs., 93 N.Y.2d 508, 693 N.Y.S.2d 91, 715 N.E.2d 117;  Lee v. TT & PP Main St. Realty Corp., 286 A.D.2d 665, 729 N.Y.S.2d 775).

 The defendant contends that the Supreme Court erred in granting a Yellowstone injunction to the plaintiff Nextel of New York, Inc. (hereinafter Nextel), because the parties' agreement merely granted Nextel a non-exclusive license to utilize a portion of the premises for its cellular telephone antennae and equipment.  “The central distinguishing characteristic of a lease is the surrender of absolute possession and control of property to another party for an agreed-upon rental” (Matter of Dodgertown Homeowners Assn. v. City of New York, 235 A.D.2d 538, 539, 652 N.Y.S.2d 761;  Matter of Davis v. Dinkins, 206 A.D.2d 365, 613 N.Y.S.2d 933).   A license gives no interest in land.   It confers only the non-exclusive, revocable right to enter the land of the licensor to perform an act (see Miller v. City of New York, 15 N.Y.2d 34, 255 N.Y.S.2d 78, 203 N.E.2d 478;  Linro Equip. Corp. v. Westage Tower Assocs., 233 A.D.2d 824, 650 N.Y.S.2d 399; 49 N.Y. Jur 2d, Easements, § 196).   Whether a given agreement is a lease or a license depends upon the parties' intentions (see Linro Equip. Corp. v. Westage Tower Assocs., supra;  Dime Laundry Serv. v. 230 Apartments Corp., 120 Misc.2d 399, 466 N.Y.S.2d 117).

 We agree with the Supreme Court's determination that the parties' agreement herein was a lease.   The agreement provided for Nextel to install its antennae on the roof of the defendant's building and to occupy 200 square feet of interior space as described in the plans expressly annexed to the lease.   While several other cellular telephone carriers also occupied the roof and other portions of the building, pursuant to the equipment room plan, Nextel was to partition off an existing room by building a wall and by adding a new door to access its portion of the newly-created room.   Nextel was to install a new “HVAC” unit to maintain the environment in its room, and radio equipment to handle the telephone signals.   Nextel's sophisticated electronic equipment would occupy the entire new room, and thus its access thereto was to be exclusive.

The term of the lease was for five years, with five automatic renewal terms of five years each.   Nextel retained title to its equipment;  the equipment would not become fixtures.   Nextel's employees were to have unlimited access to the premises.   Nextel had the expressly-granted right to quiet enjoyment.   In short, the parties' agreement “contain[ed] many provisions typical of a lease and conferring rights well beyond those of a licensee or holder of a mere temporary privilege” (Miller v. City of New York, supra at 37, 255 N.Y.S.2d 78, 203 N.E.2d 478;  see Tsabbar v. Auld, 276 A.D.2d 442, 714 N.Y.S.2d 489).   Accordingly, the Supreme Court properly determined that the agreement was a lease and not a license.

The defendant's remaining contentions are without merit.

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