Theatre Row Phase II Associates v. National Recording Studios, Inc.

Lerner, J.

(dissenting in part). I would reverse and grant defendant’s motion for summary judgment dismissing the complaint in toto.

It is undisputed that, in 1979, defendant tenant, National Recording Studios, a production, postproduction and studio facility, which is in the business of providing studios, equipment and sundry personnel (i.e., technical directors, camera operators, video engineers, etc.) to its clients, entered into a 25-year lease for the former West Side Airline Terminal building at 460 West 42nd Street. As noted by the motion court, section 7.2 of the lease governs subletting of the premises and provides, in pertinent part: “For purposes of this Section 7.2 subletting shall not be deemed to be the licensing by Tenant of part or all of its premises for periods of time to business clients for audio and visual recording purposes.” The motion court also found “that the very nature of defendant’s business required it to allow producers and production companies the exclusive use of the premises.” Defendant admits that, over the years, it has executed many facility agreements, license agreements and the like with its clients.

Nevertheless, in denying defendant’s motion, the motion court, relying upon Tsabbar v Auld ( 276 AD2d 442 ) and the general statement that some courts have held that granting a party the exclusive use of premises constitutes a sublease, found that “it is unclear from the lease exactly what the intent of the parties was, considering the fact that the defendant’s business apparently required it to give control of the premises to clients.” However, given the nature of defendant’s business and the unambiguous terms of the parties’ lease, which specifically contemplated defendant’s licensing of its premises to production companies for periods of time, there is no basis in law or fact for the motion court’s finding that the lease was ambiguous as to the intent of the parties.

Where the terms of the lease are clear and unambiguous, they are to be enforced in accordance with the expressed intention of the parties and the courts must take into consideration the practical business considerations involved in real estate transactions (see, Wiener v Ga-Ro Die Cutting, 104 AD2d 331, 333 , affd 65 NY2d 732 ). Likewise, where the lease terms are negotiated by experienced attorneys and business persons, *178 there is also no basis for interpreting the agreement to mean something other than what the parties agreed to (cf., 425 Fifth Ave. Realty Assoc. v Yeshiva Univ., 228 AD2d 178 ).

Wallace and Friedman, JJ., concur with Saxe, J.; Andrias, J.P., and Lerner, J., dissent in part in a separate opinion by Lerner, J.

Order, Supreme Court, New York County, entered on or about March 27, 2001, modified, on the law, to grant the motion for summary judgment to the extent of dismissing plaintiffs second cause of action, and otherwise affirmed, without costs.