Niskayuna Square L. L. C. v. Albank, FSB

Appellate Division of the Supreme Court of New York

Niskayuna Square L. L. C. v. Albank, FSB

262 A.D.2d 968, 692 N.Y.S.2d 538, 1999 N.Y. App. Div. LEXIS 7133

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 18, 1999

StatusPublished

This text of 262 A.D.2d 968 (Niskayuna Square L. L. C. v. Albank, FSB) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Niskayuna Square L. L. C. v. Albank, FSB, 262 A.D.2d 968, 692 N.Y.S.2d 538, 1999 N.Y. App. Div. LEXIS 7133 (N.Y. Ct. App. 1999).

Pincite

Opinion

—Order unanimously reversed on the law without costs, motion denied, summary judgment granted to defendant and complaint dismissed. Memorandum: Supreme Court erred in granting plaintiff landlord’s motion seeking partial summary judgment on liability and to strike defendant tenant’s second and third affirmative defenses in this action for breach of contract. Although we agree with the court that the terms of the parties’ lease agreement are not ambiguous, we conclude that, unless the disputed sections are read together, they do not “ ‘ “give effect to the intention of the parties” ’ ” (Matter of Wallace v 600 Partners Co., 86 NY2d 543, 548, quoting Breed v Insurance Co., 46 NY2d 351, 355, rearg denied 46 NY2d 940). Specifically, when read together, the December 15, 1995 deadline in section 4 (a) (i) is a condition precedent to defendant’s right to terminate the lease based on plaintiff’s failure to obtain site plan approval as provided for in section 5 (a) (i). If the disputed sections are not read together, both the December 15, 1995 deadline in section 4 and defendant’s remedy for the failure of plaintiff to meet its obligation provided for in section 5 are rendered meaningless. Therefore, notwithstanding the absence of a cross motion for summary judgment by defendant, we grant summary judgment to defendant dismissing the complaint (see, Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-112; CPLR 3212 [b]). (Appeal from Order of Supreme Court, Erie County, Whelan, J. — Summary Judgment.) Present — Denman, P. J., Green, Pine, Scudder and Balio, JJ.

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—Order unanimously reversed on the law without costs, motion denied, summary judgment granted to defendant and complaint dismissed. Memorandum: Supreme Court erred in granting plaintiff landlord’s motion seeking partial summary judgment on liability and to strike defendant tenant’s second and third affirmative defenses in this action for breach of contract. Although we agree with the court that the terms of the parties’ lease agreement are not ambiguous, we conclude that, unless the disputed sections are read together, they do not “ ‘ “give effect to the intention of the parties” ’ ” (Matter of Wallace v 600 Partners Co., 86 NY2d 543, 548, quoting Breed v Insurance Co., 46 NY2d 351, 355, rearg denied 46 NY2d 940). Specifically, when read together, the December 15, 1995 deadline in section 4 (a) (i) is a condition precedent to defendant’s right to terminate the lease based on plaintiff’s failure to obtain site plan approval as provided for in section 5 (a) (i). If the disputed sections are not read together, both the December 15, 1995 deadline in section 4 and defendant’s remedy for the failure of plaintiff to meet its obligation provided for in section 5 are rendered meaningless. Therefore, notwithstanding the absence of a cross motion for summary judgment by defendant, we grant summary judgment to defendant dismissing the complaint (see, Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-112; CPLR 3212 [b]). (Appeal from Order of Supreme Court, Erie County, Whelan, J. — Summary Judgment.) Present — Denman, P. J., Green, Pine, Scudder and Balio, JJ.

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Bluebook (online)

262 A.D.2d 968, 692 N.Y.S.2d 538, 1999 N.Y. App. Div. LEXIS 7133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/niskayuna-square-l-l-c-v-albank-fsb-nyappdiv-1999.

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