Gramercy Park Animal Center, Inc. v. Novick , 51 A.D.2d 930 ( 1976 )

Order, Supreme Court, New York County, entered on October 21, 1975, affirmed, without costs and without disbursements, on the opinion of Helman, J. Concur—Stevens, P. J., Silverman and Lynch, JJ.; Birns and Capozzoli, JJ., dissent in the following memorandum by Capozzoli, J.: I dissent from the majority’s determination insofar as it affirms so much of the order of Special Term as granted defendant’s cross motion for summary judgment dismissing the complaint herein. I believe that the last sentence in paragraph 8 of the practice lease, the "Non-Competition Covenant”, which is the subject of this litigation, is sufficient to create a factual issue with regard to the intent of the parties. That sentence states in its entirety as follows: "This provision [the covenant not to compete] shall survive the termination of this lease and the aforesaid realty lease and shall bind tenant [defendant] for said [five] year period.” This sentence stands by itself and is unrelated to the language which precedes it. That language dealt primarily with a termination due to a cancellation and default. The quoted last sentence refers to a termination because of expiration of the term of the lease, viz. five years. It can be reasonably argued that whether the termination took place because of the time expiration or because of the eventualities referred to in the earlier language, the parties did agree on the competitive covenant surviving the lease. A trial should be held.