BOWLMOR TIMES SQUARE LLC, plf-res, v. AI 229 WEST 43RD STREET PROPERTY OWNER, LLC, def-ap, FIVE MILE CAPITAL II NYT JV. def

9151-9152. BOWLMOR TIMES SQUARE LLC, plf-res, v. AI 229 WEST 43RD STREET PROPERTY OWNER, LLC, def-ap, FIVE MILE CAPITAL II NYT JV. def — Meister Seelig & Fein LLP, New York (Stephen B. Meister of counsel), for ap — Belkin Burden Wenig & Goldman LLP, New York (Magda L. Cruz of counsel), for res — Judgment, Supreme Court, New York County (Barbara R. Kapnick, J.), entered July 25, 2012, which, to the extent appealed from, denied defendant-appellant's motion to dismiss, pursuant to CPLR 3211(a), plaintiff's fifth, sixth, eighth and tenth causes of action, unanimously modified, on the law, to declare that rent became payable on September 19, 2011, 300 days after the date plaintiff tenant opened for business, and to grant the motion to dismiss as to the eighth cause of action, and otherwise affirmed, without costs. Appeal from order, same court and Justice, entered June 4, 2012, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

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9151-9152. BOWLMOR TIMES SQUARE LLC, plf-res, v. AI 229 WEST 43RD STREET PROPERTY OWNER, LLC, def-ap, FIVE MILE CAPITAL II NYT JV. def — Meister Seelig & Fein LLP, New York (Stephen B. Meister of counsel), for ap — Belkin Burden Wenig & Goldman LLP, New York (Magda L. Cruz of counsel), for res — Judgment, Supreme Court, New York County (Barbara R. Kapnick, J.), entered July 25, 2012, which, to the extent appealed from, denied defendant-appellant’s motion to dismiss, pursuant to CPLR 3211(a), plaintiff’s fifth, sixth, eighth and tenth causes of action, unanimously modified, on the law, to declare that rent became payable on September 19, 2011, 300 days after the date plaintiff tenant opened for business, and to grant the motion to dismiss as to the eighth cause of action, and otherwise affirmed, without costs. Appeal from order, same court and Justice, entered June 4, 2012, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Plaintiff’s fifth and sixth causes of action seek a declaratory judgment as to when it was required to begin paying rent under the rent commencement date clause of the lease. It provides that the rent commencement date is “the earlier of” (i) 300 days from the date tenant opened for business at the premises, and (ii) 685 days after delivery of possession, subject to landlord delay pursuant to the provisions of lease section 14.04(B). Plaintiff seeks a declaration that delivery of possession did not occur on January 7, 2010, as defendant asserts, and that the rent commencement date is thereby extended for each day landlord delayed delivery. Since these causes of action cannot be sustained under the plain language of the rent commencement clause, defendantappellant is entitled to a declaration in its favor on the merits (Hirsch v. Lindor Realty Corp., 63 NY2d 878, 881 [1984]).

BOWLMOR TIMES SQUARE LLC, plf-res, v. AI 229 WEST 43RD STREET PROPERTY OWNER, LLC, def-ap, FIVE MILE CAPITAL II NYT JV. def

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