Theroux v. Resnicow
| Decision Date | 27 October 2020 |
| Docket Number | Index No. 154642/17,Case No. 2019-5576,12201 |
| Citation | 134 N.Y.S.3d 325,187 A.D.3d 654 |
| Parties | Justin THEROUX, Plaintiff–Respondent, v. Norman J. RESNICOW, et al., Defendants–Appellants, 71 Washington Place Owners, Inc., et al., Nominal Defendants. |
| Court | New York Supreme Court — Appellate Division |
187 A.D.3d 654
134 N.Y.S.3d 325
Justin THEROUX, Plaintiff–Respondent,
v.
Norman J. RESNICOW, et al., Defendants–Appellants,
71 Washington Place Owners, Inc., et al., Nominal Defendants.
12201
Index No. 154642/17
Case No. 2019-5576
Supreme Court, Appellate Division, First Department, New York.
ENTERED: October 27, 2020
Peter M. Levine, New York, for appellants.
Pryor Cashman LLP, New York (Eric D. Sherman of counsel), for respondent
Gische, J.P., Oing, Scarpulla, Mendez, JJ.
Order, Supreme Court, New York County (Gerald Lebovits, J.), entered on or about June 25, 2019, which, to the extent appealed from as limited by the briefs, denied defendants Norman J. Resnicow and Barbara Resnicow's motion for summary judgment declaring, upon their counterclaim, the legal boundary between the parties' portions of the roof terrace of their building to be in accordance with their contentions, and granted plaintiff's motion for summary judgment on his trespass claim and declaring the legal boundary to be in accordance with his contentions, unanimously modified, on the law, solely to declare in plaintiff's favor on defendants' counterclaim, and, as so modified, affirmed, with costs.
The court correctly determined that the language of the cooperative offering plan describing the boundary between
plaintiff's and defendants' portions of the roof terrace was ambiguous (see Ellington v. EMI Music, Inc., 24 N.Y.3d 239, 244, 997 N.Y.S.2d 339, 21 N.E.3d 1000 [2014] ). As used in the offering plan, the terms "stair" and "stairs" are susceptible to at least two reasonable interpretations, and the offering plan otherwise does not disclose the parties' intent (see id. ).
The court properly considered extrinsic evidence to resolve the ambiguity (see Chen v. Yan, 109 A.D.3d 727, 729, 971 N.Y.S.2d 519 [1st Dept. 2013] ). The extrinsic evidence presented supports plaintiff's interpretation of the offering plan; defendants identified no extrinsic evidence that supports their interpretation (see Nova Cas. Co. v. Peter Thomas Roth...
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Stolzman v. 210 Riverside Tenants, Inc.
...resolve the issue of replacement, this court must turn to extrinsic evidence to determine the parties' intent. (See Theroux v Resnicow, 187 A.D.3d 654, 654-655 [1st Dept 2020].) The parties have provided a number of documents illustrating the negotiation process that took place between Howk......
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Parol evidence
...S.A. , 10 N.Y.3d 25, 852 N.Y.S.2d 820 (2008); Kislak v. Bourke , 24 A.D.3d 258, 808 N.Y.S.2d 174 (1st Dept. 2005); heroux v. Resnicow , 187 A.D.3d 654, 134 N.Y.S.3d 325 (1st Dept. 2020); NAB Construction Corp. v. he City of New York , 276 A.D.2d 388, 714 N.Y.S.2d 279 (1st Dept. 2000). Cas......
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Parol evidence
...is incomplete or ambiguous. See, e.g. , Innophos, Inc. v. Rhodia, S.A. , 10 N.Y.3d 25, 852 N.Y.S.2d 820 (2008); Theroux v. Resnicow , 187 A.D.3d 654, 134 N.Y.S.3d 325 (1st Dept. 2020); In re Kislak v. Bourke , 24 A.D.3d 258, 808 N.Y.S.2d 174 (1st Dept. 2005); NAB Construction Corp. v. The C......