Mur-Mil Caterers, Inc. v. Werner

166 A.D.2d 565, 560 N.Y.S.2d 849, 1990 N.Y. App. Div. LEXIS 12575

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 15, 1990
• Status: Published

Opinion

In an action, inter alia, for a judgment declaring that the term of a lease between the plaintiff lessee and the defendant lessor had been extended until May 31, 1996, the plaintiff appeals from stated portions of an order of the Supreme Court, Nassu County (Brucia, J.), dated November 16, 1988, which, inter alia, granted the defendant’s motion for summary judgment dismissing the first cause of action and for summary judgment on the defendant’s first and second counterclaims asserted in the amended verified answer.

Ordered that the order is affirmed insofar as appealed from, with costs.

To constitute a valid agreement for the lease of real property, the parties must have reached final agreement upon all its essential terms, without reservation of any term for future negotiations (see, Kalker v Columbus Props., 111 AD2d 117). This is especially true of the amount to be paid for rent (see, Martin Delicatessen v Schumacher, 52 NY2d 105). The alleged agreement states that rent was to be "predicated upon a normal increase”. We find that the rent figure is not ascertainable by an objective standard, and thus the proported lease fails for indefiniteness (see, Martin Delicatessen v Schumacher, supra). Bracken, J. P., Kunzeman, Eiber and Harwood, JJ., concur.