Wiener v. Ga-Ro Die Cutting Inc.
| Decision Date | 23 August 1984 |
| Docket Number | GA-RO |
| Citation | 104 A.D.2d 331,479 N.Y.S.2d 35 |
| Parties | Louis WIENER, Plaintiff-Respondent, v.DIE CUTTING INC., Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
R.L. Lewis, New York City, for plaintiff-respondent.
J. Hershkowitz, New York City, for defendant-appellant.
Before MURPHY, P.J., and SANDLER, CARRO, SILVERMAN and KASSAL, JJ.
Order, Supreme Court, New York County, entered November 23, 1983, which granted plaintiff's motion for summary judgment on liability and directed an assessment of damages, reversed, on the law, with costs and disbursements, and the motion for summary judgment denied.
In November 1977, plaintiff's assignor, as landlord, had entered into a standard loft lease with defendant, as tenant, providing for annual rent of $15,000 payable in equal monthly installments. By a rider attached to the lease, it was agreed, in paragraphs 41 and 42, that the tenant would pay a proportionate share of any escalations in real estate taxes and maintenance and operating costs over the term of the lease. Paragraph 43 obligated the tenant to maintain liability insurance for the protection of both the landlord and the tenant, the last sentence in paragraph 43 providing as follows:
"Notwithstanding the foregoing, Tenant shall not be obligated for more than the sum of $750.00 per year in each of the years 1979, 1980 and 1981; for not more than the $1,000.00 per each year in the years 1982, 1983 and 1984; and for not more than the sum of $1,500.00 per each year in the years 1985, 1986 and 1987, none of the aforesaid sums to be accumulative."
The action was brought by the present landlord to recover for escalation payments allegedly due under paragraph 42 of the lease for the years 1979-1982, the tenant interposing a counterclaim in its answer for a declaratory judgment that the cap or limitation on escalation payments provided for in the last sentence of paragraph 43 was intended to apply, not only to the insurance clause (par. 43), but also to the real estate tax (par. 41) and operating and maintenance cost (par. 42) escalation clauses. On that basis the tenant sought to limit its liability to the maximum specified in the last sentence in paragraph 43.
Special Term, holding that the agreement was clear and unambiguous, found no basis to conclude that the limitation contained in paragraph 43 was applicable to the escalation provisions in paragraphs 41 and 42. Accordingly, the court granted summary judgment and directed an assessment of damages.
We disagree and find that there are factual issues sufficient to preclude summary resolution. On this record, we cannot determine the intention of the parties at the time they executed the lease, including whether the maximum limitation language was inadvertently inserted as part of paragraph 43, instead of as a separate paragraph, relating to all three paragraphs. Here, both parties who took part in the negotiations and the execution of the lease are in agreement as to what was intended. Murray Brick, defendant's secretary, who had negotiated the lease with the original landlord, and Roy Lawrence, a principal...
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