
    Cellular Telephone Company, Also Known as AT&T Wireless, Respondent, v 210 East 86th Street Corp., Appellant.
    [787 NYS2d 284]
   Judgment, Supreme Court, New York County (Marylin G. Diamond, J.), entered June 20, 2003, which denied defendant’s motion for summary judgment and granted plaintiffs cross motion for summary judgment, declaring plaintiffs exercise of the renewal option in the lease valid and effective, and directing defendant to extend the term of the lease for a second five-year term commencing January 1, 2003, unanimously affirmed, with costs.

Since the gravity of the loss was out of proportion to the gravity of the breach, the motion court properly allowed equity to intervene under the circumstances presented (see J.N.A. Realty Corp. v Cross Bay Chelsea, 42 NY2d 392 [1977]; Restoration Realty Corp. v Robero, 87 AD2d 301 [1982], affd 58 NY2d 1089 [1983]). Plaintiff paid rent for each of the four months in question, inadvertently failing to pay only the nominal cost-of-living increase, and invested substantial funds to improve the premises in reliance on its right to exercise the option. Moreover, the premises have been one of plaintiffs top producing retail locations, and defendant failed to establish that any prejudice resulted from the breach. Concur—Mazzarelli, J.P, Saxe, Ellerin, Nardelli and Marlow, JJ.  