Westbury Post Avenue Associates v. Great Atlantic & Pacific Tea Co.

46 A.D.2d 860, 361 N.Y.S.2d 377, 1974 N.Y. App. Div. LEXIS 3454

Opinion

Order, Supreme Court, New York County, entered April 8, 1974, denying a motion and cross motion for summary judgment, unanimously modified, on the law, without costs and without disbursements, to grant summary judgment to the plaintiff. The defendant rents a store in Westbury, Long Island, under a lease made with plaintiff’s predecessor in interest, which contains a tax escalation clause reading in part as follows: “ Lessee shall, commencing with the first full year of tax assessment on the herein leased premises * * * reimburse Lessor- for the increase, if any, of its proportionate share of real estate taxes assessed against the demised premises, which exceeds the real estate taxes assessed against said demised premises for the previous year.” The escalation provision attributed 78% of the tax increase liability to the defendant and limits its exposure fof increased payment in any one year to $2,000. Defendant takes the position that in any one year it is to pay only the tax increase over the previous year, and that the increases of the previous years are not carried forward as part of the new payment. In the context of the arrangement and lease between the parties, such interpretation would achieve an absurd result. (River View Assoc. v. Sheraton Gorp. of Amer., 33 A D 2d 187, affd. 27 N Y 2d 718.) Settle order on notice. Concur — Nunez, J. P., Kupferman, Lupiano and Steuer, JJ.