Supreme Court, Appellate Division, Second Department, New York.

William F. BERGHOLD, et al., Appellants,
v.
Samuel KIRSCHENBAUM, etc., et al., Respondents.
(and a third-party action).


Oct. 29, 2001.


 Commercial tenants sued landlord, seeking judgment declaring tenants were in 
compliance with lease. Landlord asserted counterclaim for judgment declaring 
tenants failed to exercise option for second renewal of lease. The Supreme 
Court, Nassau County, Martin, J., entered summary judgment for landlord on 
counterclaim. Tenants appealed. The Supreme Court, Appellate Division, held that 
option to renew lease for second 21 year renewal period was intended to be 
exercised no more than two years and no less than one year before expiration of 
first 21 year renewal term.

 Affirmed.


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Under commercial lease and contemporaneously executed memorandum agreement, 
option to renew lease for second 21 year renewal period was intended to be 
exercised no more than two years and no less than one year before expiration of 
first 21 year renewal term, and base rent was to be redetermined at that time.
 **764 Pieper Hoban & Royce, P.C., Mineola, N.Y. (Stephen P. Hoban of counsel), 
for appellants.

 Samuel Kirschenbaum, Garden City, N.Y., respondent pro se;  Meyer Suozzi 
English & Klein, P.C., Mineola, N.Y., for respondents;  and Kirshchenbaum & 
Kirshchenbaum, P.C., Garden City, N.Y. (Brian Michael Seltzer of counsel), for 
respondents Samuel Kirschenbaum, Ashley D. Hoffman, Jerome J. Hoffman, David R. 
Simon, Meredith Burrus, Vincent Damiano, Miriam Klein, Lewis D. Cohen, Beatrice 
Danziger, Eli Wasserstein, Murray D. Felton, Theodore Beck, and Alma B. 
Greenburg (one brief filed).


 **765 GABRIEL M. KRAUSMAN, J.P., SONDRA MILLER, WILLIAM D. FRIEDMANN and ROBERT 
W. SCHMIDT, JJ.


 *673 In an action, inter alia, for a judgment declaring that the plaintiffs are 
in compliance with the terms of a lease, the plaintiffs appeal, as limited by 
their brief, from stated portions of an order of the Supreme Court, Nassau 
County (Martin, J.), dated May 5, 2000, which, among other things, granted that 
branch of the cross motion of the defendant 815-829 Franklin Avenue, LLC, which 
was for summary judgment on its counterclaim for a judgment declaring that the 
plaintiffs failed to properly exercise their option for a second renewal of the 
lease.

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

 The plaintiffs (hereinafter the tenants) leased commercial property from the 
defendant 815-829 Franklin Avenue, LLC (hereinafter the landlord).   The lease 
for the property afforded the tenants an option to renew, for either one or two 
21-year periods.   At issue on this appeal is the second of the two 21-year 
renewal periods.

 The tenants seek a judgment declaring that both renewal options were 
simultaneously exercised in accordance with the lease prior to the expiration of 
the first term, and that the new base rent amount, applicable to both renewal 
terms, was decided at that time.   The landlord, relying upon a recorded 
memorandum agreement which was signed on the same day as the lease, 
counterclaimed for a judgment declaring that the parties intended the second 
renewal option to be exercised no more than two years and no less than one year 
before the expiration of the first renewal option period, and that a new base 
rent was to be determined at that time.

 Where "a question of intention is determinable by written agreements, the 
question is one of law, appropriately decided by an appellate court (see, 
Rentways, Inc. v. O'Neill Milk & Cream Co., 308 N.Y. 342, [349, 126 N.E.2d 271] 
), or on a motion for summary judgment.   Only where the intent must be 
determined by disputed evidence or inferences outside the written words of the 
instrument is a question of fact presented" (Mallad Constr. Corp. v. County Fed. 
Sav. & Loan Assn., 32 N.Y.2d 285, 291, 344 N.Y.S.2d 925, 298 N.E.2d 96).

 Here, it is clear from the lease and the contemporaneously executed memorandum 
agreement (see, BWA Corp. v. Alltrans Express U.S.A., 112 A.D.2d 850, 852, 493 
N.Y.S.2d 1), that the option to renew *674 the lease for a second 21 year 
renewal period was intended to be exercised no more than two years and no less 
than one year before expiration of the first renewal term, and that the base 
rent would be redetermined at that time.

 The landlord's cause of action for a declaratory judgment was not barred by 
either the Statute of Limitations or laches (see, Sorrentino v. Mierzwa, 25 
N.Y.2d 59, 302 N.Y.S.2d 565, 250 N.E.2d 58).

 The appellants' remaining contentions are without merit.

731 N.Y.S.2d 764, 287 A.D.2d 673, 2001 N.Y. Slip Op. 08371

END OF DOCUMENT