Ainetchi v 500 W. End LLC

Ainetchi v 500 W. End LLC 2012 NY Slip Op 01358 Decided on February 23, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 23, 2012
Mazzarelli, J.P., Catterson, Renwick, Abdus-Salaam, Manzanet-Daniels, JJ.
6886 118597/02

[*1]Issac Ainetchi, et al., Plaintiffs-Respondents,

v

500 West End LLC, Defendant-Appellant.




Franklin R. Kaiman, New York, for appellant.
Cuddy & Feder LLP, White Plains (Joshua E. Kimerling of
counsel), and Connors and Sullivan, P.C., Brooklyn (Edward R.
Dorney of counsel), for respondents.

Supplemental judgment, Supreme Court, New York County (Debra A. James, J.), entered March 9, 2011, after a nonjury trial, awarding plaintiffs possession of a mechanical room situated between two residential condominiums at 500 West End Avenue in Manhattan, unanimously reversed, on the facts, with costs, the judgment vacated, and possession of the mechanical room awarded to the owner of Penthouse East. The Clerk is directed to enter judgment accordingly.

The weight of the evidence did not support the trial court's fact-finding determination that the mechanical room at issue belonged to Penthouse West, the unit purchased by plaintiffs (see Green v William Penn Life Ins. Co. of N.Y., 74 AD3d 570, 571 [2010]). Pursuant to the Offering Plan Floor Plans and the Tax Lot Floor Plans, the mechanical room at issue was contained within Penthouse East. Although the plans drafted by defendant's architect (the BKS Plans) labeled the mechanical room "W212," this information conflicted with the Door and Finish Schedule also included within the BKS Plans, thereby rendering this document ambiguous (see Ainetchi v 500 W. End LLC, 51 AD3d 513 [2008]). Since the BKS Plans are ambiguous, the parties were required to go outside the documents to establish the ownership of the mechanical room (see NAB Constr. Corp. v City of New York, 276 AD2d 388, 390 [2000]).

Taking defendant's testimony with the relevant documents, i.e., the Offering Plan, the Tax Lot Plan, and the discrepancies within the BKS Plans (see Kralik v 239 E. 79th St. Owners Corp., 5 NY3d 54, 57 [2005]; Sassi-Lehner v Charlton Tenants Corp., 55 AD3d 74, 78 [2008]), the evidence supports a fact-finding determination that the mechanical room was initially contemplated within the space attributed to Penthouse East, that the designation of the mechanical room as "W212" was a typographical error, that the mechanical room was, in fact, part of Penthouse
East, and that the mechanical room was connected to Penthouse West because it was easier to do so while the parties settled their dispute as to ownership of this room.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 23, 2012

CLERK