Rapid 89th Street Corp. v. Geloda/BriarWood Corp.

170 A.D.2d 393, 566 N.Y.S.2d 614, 1991 N.Y. App. Div. LEXIS 2417

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 28, 1991
• Status: Published

Opinion

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered August 15, 1990, which denied defendant’s motion for summary judgment, unanimously affirmed, with costs.

Plaintiff leases a parking garage from defendant in a condominium development. The sole issue raised on appeal concerns the construction of paragraph 44 (a) (ii) of the lease which provides: "(ii) Tenant agrees to pay to Landlord, as and for additional rent hereunder, all Real Estate Taxes with respect to every Tax Year or part thereof during the term of this Lease; provided, however, to the extent Real Estate Taxes, as finally determined for the Tax Year beginning July 1, 1985 and ending June 30, 1986, exceed $21,000, Tenant shall have the right to deduct from the Real Estate Taxes payable hereunder pursuant to this Paragraph 44 for each Lease Year, such excess proportionately from the payments due pursuant to this Paragraph 44.”

Plaintiff contends that it is responsible only for additional rent in an amount by which the annual tax does not exceed $21,000; defendant contends that plaintiff is responsible for the entire amount of the real estate tax.

We agree with the IAS Court that paragraph 44 (a) (ii) is ambiguous. When the court must resort to inferences outside the written words of the contract, a question of fact exists which requires resolution by trial. (Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285, 291.) Concur— Murphy, P. J., Sullivan, Rosenberger, Ross and Asch, JJ.