Summary
In Bensons Plaza (supra, pp 791-792), a lease clause permitted rent increases to reflect real estate tax escalations: "`provided, however, that in no event shall the rental fixed under this clause vary from the rental under this lease by more than $1,006.
Summary of this case from Kenilworth v. Bankers TrustOpinion
Argued February 17, 1978
Decided May 2, 1978
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, JOSEPH P. KUSZYNSKI, J.
Michael Beilewech, Jr., for appellant.
Harold M. Halpern for respondent.
MEMORANDUM.
Order reversed and summary judgment granted to defendant tenant. The disputed lease term may, of course, be viewed in the context of surrounding circumstances. It is the rare writing that requires no interpretation. (3 Corbin, Contracts, § 535; Restatement, Contracts 2d, § 228, Comment b; § 238, Comment b [Tent Draft No. 5]; cf. Hotel Credit Card Corp. v American Express Co., 13 A.D.2d 189, 193.) The point is, however, that even in light of all the surrounding circumstances, the highly probable inference is that "the rental under this lease" was intended to mean the rent stipulated for the first year. If the landlord intended otherwise, it should have been made explicit. In the absence of the tender of extrinsic evidence to establish otherwise, the court establishes the meaning of the provision in question from within the four corners of the agreement and the general circumstances of the relation between the parties, including the subject matter of the agreement (Mallad Constr. Corp. v County Fed. Sav. Loan Assn., 32 N.Y.2d 285, 290-291; Cushman Wakefield v Dollar Land Corp., 36 N.Y.2d 490, 494-495; Matter of Surrey Strathmore Corp. v Dollar Sav. Bank, 36 N.Y.2d 173, 176-177).
I dissent and vote to affirm on the well-reasoned opinion of Mr. Justice RICHARD J. CARDAMONE writing for a majority at the Appellate Division. Quite apart from the rationale employed by him, it is the unusual case where an annual tax escalation clause, such as in this very case, is made applicable to but one year, which has no basis in logic and makes no commercial sense, rather than for the entire term of the lease.
Chief Judge BREITEL and Judges JASEN, JONES, WACHTLER, FUCHSBERG and COOKE concur; Judge GABRIELLI dissents and votes to affirm in a separate memorandum.
Order reversed, with costs, and summary judgment granted to defendant tenant dismissing the first cause of action in a memorandum.