July 10, 1967
Order of the Supreme Court, Queens County, dated January 30, 1967, and judgment of said court entered thereon February 3, 1967, affirmed, without costs. Plaintiff leased some space in a shopping center. The lease provided, inter alia, that (a) the landlord agrees to provide a parking area, for plaintiff and other tenants of such size as shall be not less than the area for parking shown on a map attached to the lease, (b) tenant shall use and occupy the leased premises for the purpose of conducting a savings and loan banking business in conformity with the laws applicable to a Federal savings and loan association, and (c) landlord will not lease or permit any tenant in the shopping center to lease or sublease to a savings and loan association, nor will landlord permit the use of any space therein for such purpose. Subsequent thereto, the landlord leased approximately 12,000 square feet to defendant, South Brooklyn Savings Bank, on a site approximately 625 feet from the plaintiff bank, albeit leaving, in square footage, more than was initially provided for in the map attached to the lease. Plaintiff sued to enjoin the landlord and defendant savings bank from further implementing their agreement of lease, claiming that the restrictive covenants contained in plaintiff's lease were designed and intended (a) to preserve the configuration and the spaces actually allocated prior to the execution of plaintiff's lease, and (b) to prohibit landlord's leasing to any bank competitive with plaintiff bank, which would include defendant savings bank. In our opinion, the provision with respect to the parking area clearly refers to an area not less than that shown on the attached map, and does not lend itself to the construction suggested by plaintiff, to wit, that the layout and configuration was the primary contemplated consideration and not the amount of footage. There is no ambiguity which would justify looking dehors the instrument itself for a clarification of intent. As for the nature of the business contemplated, the applicable provisions of the lease specifically refer to a savings and loan association and not to a savings bank. In construing these provisions, we are solely concerned with the intent of the parties to the agreement and not with any professed public image of what these institutions may have in common. In our opinion, there are areas of marked distinction between the two types of institutions well known in banking circles, and the parties hereto, as well as their attorneys, as knowledgeable as they were in this respect, must be charged with having been fully aware thereof. Under the circumstances, the clear and unambiguous reference to a savings and loan association, in the use clause and in the restrictive covenant of the lease, a product of approximately one year's negotiations between the parties and their representatives, and the absence of any reference to a savings bank, do not justify going behind the instrument for clarification and do not permit a construction beyond the limitation expressed by the parties. We cannot rewrite an agreement entered into between knowledgeable parties and effect a result in the derogation of its express terms. Accordingly, absent any triable issues of fact, defendant's cross motion for summary judgment dismissing the complaint was property granted. Beldock, P.J., Christ, Rabin and Benjamin, JJ., concur; Munder, J. dissents and votes to reverse the order and judgment, and to deny defendant's cross motion for summary judgment, with the following memorandum: The essential character of a savings and loan association, and certainly its public image, is that of a savings bank. Savings banks and savings and loan associations are spirited competitors for the savings dollars, and savings accounts and mortgage investments are the principal business purposes of both. The depositors are not so much interested in the distinctions of their corporate existence as they are in the interest rate each advertises it will pay. Summary judgment in this case by a literal interpretation of the language of the restrictive covenant should not be granted when the purpose of the covenant is highly susceptible of a much broader and more generally accepted interpretation. In my opinion, there is here a triable factual issue of intent which should be determined by a jury.