World Monuments Fund, Inc. v Ninety-Five Madison Co.

World Monuments Fund, Inc. v Ninety-Five Madison Co. 2008 NY Slip Op 00569 [47 AD3d 547] January 29, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 12, 2008

World Monuments Fund, Inc., Respondent,
v
Ninety-Five Madison Company, Appellant.

—[*1] Kaye Scholer LLP, New York City (Richard C. Seltzer of counsel), for appellant.

Fischman & Fischman, New York City (Doreen J. Fischman of counsel), for respondent.

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered August 18, 2006, which, to the extent appealed from, denied defendant landlord's motion for summary judgment on the issue of rent arrears, and granted plaintiff tenant's cross motion for summary judgment in its favor, unanimously affirmed, with costs.

The lease between the parties provides that possession of the premises should be given to the tenant upon lease signing, but no later than May 1, 2000, and that rent should commence three months after lease signing, but no later than August 1, 2000. However, lease signing and possession did not occur by May 1, 2000. In these circumstances, the court correctly found that the lease clause providing for three months rent-free is reasonably susceptible of more than one interpretation and that therefore the lease is ambiguous (see Chimart Assoc. v Paul, 66 NY2d 570, 573 [1986]).

Reading the disputed provision as a whole (see Williams Press v State of New York, 37 NY2d 434, 440 [1975]), the court correctly interpreted it as an expression of the parties' intent to provide for a three-month rent concession. The court also properly considered the term sheet of the lease and defendant's failure to bill or sue plaintiff for the rent for the months at issue and found that they supported this interpretation (see Korff v Corbett, 18 AD3d 248, 251 [2005]; Empire Mut. Ins. Co. v Applied Sys. Dev. Corp., 121 AD2d 956, 960 [1986]).

We have considered defendant's remaining contentions and find them unavailing. Concur—Lippman, P.J., Mazzarelli, Gonzalez, Sweeny and Acosta, JJ.