The leaseholder of tax block 248 Lot 76 in New York County and the mortgagee, the plaintiffs, objected to the extension of a zoning plan including tax lots 15 and 76. Tax lots 15 and 76 were merged into one zoning plan. The plaintiffs argued that the waivers did not allow the zoning plan to be further expanded to include tax lot 70; they sought a ruling that the waivers would not allow further expansion of the zoning plan and writ of execution.

A consideration in the zoning plan and development agreement (“ZLDA”) for the combination of tax lots 15 and 76 into one zoned lot stated that the zoning plan “may be extended” and the waiver referred to the ZLDA. However, the ZLDA has not been signed by any of the plaintiffs and the Waiver itself did not address the question of whether the zoning plan could be extended further. The New York County Supreme Court has allowed plaintiffs’ motion for summary judgment, imposing construction without the consent of the plaintiffs, as interested parties, on the expansion of the zoned lot with tax lot 70. According to the court,

“[a]a matter of law, the waivers… have not waived their right to object to future mergers with other lots. The waivers are unequivocal and apply only to the merger of lots 15 and 76… Defendants’ appeal of recital B [in the ZLDA that the zoning lot “may be expanded”] to create an extension of the waivers is misguided. The recitals are descriptive and non-binding [citations omitted].”

The Court noted the following Appellate Body’s decision of the First Department in Grand Manor Health Related Facility, Inc. v. Hamilton Equities, Inc., 65 AD3d 445 (2009):

“While a statement in a ‘while’ clause may be helpful in interpreting an ambiguous performance clause in a contract, it cannot create any right beyond the rights deriving from the document’s implementing provisions.”

Little Cherry, LLC v. Cherry Street Owner LLC, 2021 NY Slip On 31225, resolved on April 9, 2021, was posted on: https://www.nycourts.gov/reporter/pdfs/2021/2021_31225.pdf.

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