Inc. v Snyder Fulton St., LLC

J.W. Mays, Inc. v Snyder Fulton St., LLC 2010 NY Slip Op 00104 [69 AD3d 572] January 5, 2010 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 10, 2010

J.W. Mays, Inc., Respondent,
v
Snyder Fulton Street, LLC, Appellant, et al., Defendant.

—[*1] Lynn, Gartner & Dunne, LLP, Mineola, N.Y. (Kenneth L. Gartner and Robert P. Lynn, Jr., of counsel), for appellant.

Holland & Knight, New York, N.Y. (Sean C. Sheely and Samuel Spital of counsel), for respondent.

In an action, inter alia, for a judgment declaring that the plaintiff tenant is not obligated under the terms of its commercial lease to make substantial capital improvements to the subject premises, the defendant Snyder Fulton Street, LLC, appeals from an order of the Supreme Court, Kings County (Schmidt, J.), dated November 24, 2008, which granted those branches of the plaintiff's motion which were for partial summary judgment declaring that it is not obligated under the terms of the subject lease to correct or cure purported structural defects to the stairwells or roof, or to abate potential hazardous materials at the premises, and for summary judgment dismissing the third counterclaim of the defendant Snyder Fulton Street, LLC. The appeal brings up for review so much of an order of the same court dated September 12, 2009, as, upon reargument, adhered to the original determination (see CPLR 5517 [b]).

Ordered that the appeal from the order dated November 24, 2008, is dismissed, as that order was superseded by the order dated September 12, 2009, made upon reargument; and it is further,

Ordered that the order dated September 12, 2009, is modified, on the law, by deleting the provision thereof which, upon reargument, adhered to so much of the original determination in the order dated November 24, 2008, as granted that branch of the plaintiff's motion which was for partial summary judgment declaring that it is not obligated under the terms of the subject lease to correct or cure purported structural defects to the stairwells or roof, or to abate potential hazardous materials at the premises, and substituting therefor provisions, upon reargument, vacating that portion of the original determination and, thereupon, denying that branch of the plaintiff's motion; as so modified, the order dated September 12, 2009, is affirmed insofar as reviewed; and it is further,

Ordered that one bill of costs is awarded to the defendant Snyder Fulton Street, LLC. [*2]

"[A] contract must be read as a whole in order to determine its purpose and intent, and . . . single clauses cannot be construed by taking them out of their context and giving them an interpretation apart from the contract of which they are a part" (Matter of Friedman, 64 AD2d 70, 81 [1978] [internal quotation marks and citation omitted]; see Aimco Chelsea Land v Bassey, 6 AD3d 367, 368 [2004]). Furthermore, "[i]n interpreting the provisions of a lease, the court should refrain from rewriting the lease under the guise of construction, should not construe the language of the lease in such a way as would distort its meaning, and should not construe the language in a manner that would render one or more of its provisions meaningless" (Poughkeepsie Sav. Bank v G.M.S.Y. Assoc., 238 AD2d 327, 327 [1997] [citations omitted]).

In this case, the plaintiff's predecessor, as tenant, constructed the subject premises after entering into a long-term ground lease with the appellant's predecessor, as landlord. The lease made the tenant responsible for "any structural or other changes, alterations or additions to any buildings on the demised premises" necessary to comply, inter alia, with ordinances and regulations of the local, state, and federal governments. The language of the parties' lease did not limit the tenant's responsibility under this provision to structural changes or alterations made necessary because of the particular use to which it put the subject premises (cf. Linden Blvd. v Elota Realty Co., 196 AD2d 808, 810 [1993]; Wolf v 2539 Realty Assoc., 161 AD2d 11, 16 [1990]). Under the circumstances presented, the plaintiff failed to make a prima facie showing that it had no obligation under the terms of the subject lease to correct or cure purported structural defects to the stairwells or roof, or to abate potential hazardous materials at the premises (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The abatement of hazardous materials may constitute a structural change (see Linden Blvd. v Elota Realty Co., 196 AD2d at 810 [asbestos abatement constitutes a structural change]).

Accordingly, upon reargument, the Supreme Court should have vacated so much of the order dated November 24, 2008, as granted that branch of the plaintiff's motion which was for partial summary judgment declaring that it is not obligated under the terms of the lease to correct or cure purported structural defects to the stairwells or roof, or to abate potential hazardous materials at the premises, and thereupon, should have denied that branch of the plaintiff's motion.

The parties' remaining contentions are either academic or without merit. Rivera, J.P., Miller, Dickerson and Roman, JJ., concur.