Niagara Frontier Transportation Authority v. EURO-UNITED CORPORATION

• Decision Date: 21 March 2003
• Citation: Niagara Frontier Transportation Authority v. EURO-UNITED CORPORATION, 303 A.D.2d 920, 757 N.Y.S.2d 174 (N.Y. App. Div. 2003)
• Parties: NIAGARA FRONTIER TRANSPORTATION AUTHORITY, Respondent,<BR>v.<BR>EURO-UNITED CORPORATION et al., Appellants, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

303 A.D.2d 920

757 N.Y.S.2d 174

NIAGARA FRONTIER TRANSPORTATION AUTHORITY, Respondent,

v.EURO-UNITED CORPORATION et al., Appellants, et al., Defendants.

Decided March 21, 2003.

Present — Pigott, Jr., P.J., Pine, Wisner, Kehoe and Gorski, JJ.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by granting partial summary judgment to plaintiff on the claim against defendant KPMG Inc. and KPMG Inc., in its capacity as interim receiver for Euro-United Corporation, for a holdover tenancy and as modified the order is affirmed without costs, and the matter is remitted to Supreme Court, Erie County, for further proceedings in accordance with the following memorandum: Plaintiff and defendant Euro-United Corporation (Euro-United of Canada) executed a lease for certain premises in Buffalo. Euro-United of Canada's Canadian affiliates, also named as defendants herein, and Euro-United of Canada (collectively, Euro-United), filed for bankruptcy protection in Canada and the United States, and defendant KPMG Inc. (KPMG) was appointed to act as interim receiver for Euro-United. KPMG proposed the sale of certain property of Euro-United located at the premises in Buffalo, but plaintiff asserted ownership of some of the property. Plaintiff and KPMG executed an "Occupancy Agreement," which incorporated by reference the lease between plaintiff and Euro-United of Canada. Pursuant to its express terms, the occupancy agreement was intended "to avoid prolonged and expensive litigation over the ownership rights of the Parties in the property," and the subject of the occupancy agreement was "certain property located within the Premises [to] be sold pursuant to an agreement with an auctioneer." That property was listed in "Exhibit `A'," which was attached to the occupancy agreement, and the occupancy agreement further provided that KPMG would be responsible for the removal of all items listed in exhibit A. The lease, however, expressly required Euro-United of Canada to remove all equipment from the property upon termination of the lease.

KPMG vacated the premises after the lease was terminated but left behind three massive pieces of equipment referred to by the parties as the Engel machines. Plaintiff sought removal of those machines and all three thereafter were removed by the time plaintiff commenced this action. The sole issue on appeal concerns the claim against KPMG for a holdover tenancy.

Euro-United and KPMG moved for summary judgment dismissing "the holdover tenancy claims" only. The complaint asserted a holdover tenancy claim against KPMG only, and thus Supreme Court properly denied that part of the motion seeking summary judgment with respect to Euro-United. We further conclude that the court properly denied that part of the motion seeking summary judgment dismissing the holdover tenancy claim against KPMG. In addition, however, we exercise our authority pursuant to CPLR 3212 (b) to search the record and grant summary judgment in favor of plaintiff on that claim.

KPMG contends that the specific provision of the occupancy agreement requiring it to remove those items listed in exhibit A is controlling over the provision in the lease requiring Euro-United of Canada to remove all equipment from the property, under a conflict of laws provision in the occupancy agreement as well as under the maxim of inclusio unius est exclusio alterius, i.e., "the inclusion of one is the exclusion of another" (Uribe v Merchants Bank of N.Y., 91 NY2d 336, 340 [1998]). Thus, KPMG contends that it was not required to remove the three machines at issue, because they were not listed in exhibit A, and it therefore was not a holdover tenant as a matter of law. We disagree.

"When interpreting a written contract, the court should give effect to the intent of the parties as revealed by the language and structure of the contract, and should ascertain such intent by examining the document as a whole. Effect and meaning must be given to every term of the contract, and reasonable effort must be made to harmonize all of its terms. Moreover, the contract must be interpreted so as to give effect to, not nullify, its general or primary purpose" (Village of Hamburg v American Ref-Fuel Co. of Niagara, 284 AD2d 85, 89 [2001], lv denied 97 NY2d 603 [2001] [internal quotation marks and citations omitted]; see generally Hartford Acc. & Indem. Co. v Wesolowski, 33 NY2d 169, 171-172 [1973]).

As previously noted,...