F.W. Woolworth Co. v. Southbridge Towers, Inc.

204 A.D.2d 174, 611 N.Y.S.2d 555, 1994 N.Y. App. Div. LEXIS 5346

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 17, 1994
• Status: Published

Opinion

—Order and judgment (one paper), Supreme Court, New York County (Peter Tom, J.), entered on or about January 27, 1993, which granted defendant’s motion for summary judgment and denied plaintiff’s cross-motion for summary judgment to the extent of declaring Article 32 (C) of the parties’ commercial lease applicable in calculating plaintiffs real estate tax liability, and ordering the parties to proceed with discovery, after which a hearing will be held to determine what, if any, tax liability exists, unanimously affirmed, with costs.

The IAS Court properly granted summary judgment to the extent indicated based upon defendant’s presentation of documentary proof in admissible form, including inter alia certified documents from the City Department of Finance showing that the commercial area of this Mitchell-Lama project was always separately assessed. The terms of the lease were not ambiguous since Article 32 (C) specifically provides for its applicability if the commercial area is separately assessed; thus, plaintiff’s mere conclusory assertions and speculation were insufficient to raise triable issues of fact. Nor was any showing made to warrant further discovery prior to the declaration made (see, Pancake v Franzoni, 149 AD2d 575, 576). However, as each party claimed monies were owed to it, and because there was insufficient information as to whether the commercial assessments applied only to plaintiff, the court properly determined that discovery and a hearing were required to determine whether any tax liability exists. Concur— Ellerin, J. P., Ross, Nardelli and Williams, JJ.