Meiselman, Denlea, Packman & Eberz, P.C. v. 11-44 Associates, L.L.C.

12 A.D.3d 158, 784 N.Y.S.2d 58, 2004 N.Y. App. Div. LEXIS 13088

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 4, 2004
• Status: Published

Opinion

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered June 2, 2003, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

Although plaintiff lessee claims defendant lessors represented that the actual area of the demised commercial premises was 7,590 square feet, when the premises were, in fact, considerably smaller, it is plain from the lease that the representation in question was not as to the actual or usable area of the premises, but its “rentable” square feet, and the documentary evidence establishes that there is in the commercial real estate industry a clear distinction between “rentable” and “usable” square footage. Comprehension of the distinction, which should not have been lost upon plaintiff, particularly since it had every opportunity to ascertain the actual dimensions of the leased space (see Duane Thomas, LLC v 62 Thomas Partners, LLC, 300 AD2d 52 [2002], lv denied 100 NY2d 513 [2003]), renders untenable plaintiffs claim of misrepresentation, and dependent causes alleging fraud and negligent misrepresentation and seeking as a remedy reformation of the lease (see Lama Holding Co. v Smith Barney, Inc., 88 NY2d 413, 421 [1996]; see also K.I.D.E. Assoc. v Garage Estates Co., 280 AD2d 251 [2001]).

We have considered plaintiffs remaining arguments and find them unavailing. Concur—Nardelli, J.P., Andrias, Sullivan, Williams and Friedman, JJ.