Schindler El. Corp. v 475 Park Ave. So. Co.

[*1] Schindler El. Corp. v 475 Park Ave. So. Co. 2013 NY Slip Op 23069 Decided on March 12, 2013 Appellate Term, 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 printed Miscellaneous Reports.

Decided on March 12, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Torres, J.P., Schoenfeld, Shulman, JJ
571112/12.

Schindler Elevator Corporation, Plaintiff-Respondent, - -

against

475 Park Avenue So. Co., and 475 Building Company, LLC, Defendants-Appellants - and - 475 Park Avenue South, LLC, Defendant.

Defendants 475 Park Avenue So. Co. and 475 Building Company, LLC, appeal from an order of the Civil Court of the City of New York, New York County (Debra Rose Samuels, J.), entered September 21, 2012, which granted plaintiff's motion pursuant to CPLR 3211 and 3212 to dismiss defendants' counterclaims.

Per Curiam.

Order (Debra Rose Samuels, J.), entered September 21, 2012, reversed, with $10 costs, motion denied and defendants-appellants' counterclaims reinstated.

The disputed language contained in article 7 of the governing elevator maintenance agreement — amorphously headed "Responsibility" — is ambiguous, i.e., "reasonably susceptible of more than one interpretation" (One Hundred Grand, Inc. v Chaplin, 70 AD3d 513 [2010], quoting Chimart Assoc. v Paul, 66 NY2d 570, 573 [1986]). The language under scrutiny, read literally and broadly, as urged by plaintiff, can be interpreted as limiting plaintiff's liability for damages "of any kind" in any action, whether brought by defendant or a noncontracting third party. However, the narrower interpretation offered by defendants-appellants, that the challenged portion of article 7 was intended only to constitute the parties' allocation of the risk of liability to third parties, is not unreasonable since it appears consistent with the remaining provisions of article 7 and the format of the contract as a whole (see Atwater & Co. v Panama R.R. Co., 246 NY 519 [1927]; Bijan Designer For Men v Fireman's Fund Ins. Co., 264 AD2d 48, 51-52 [2000], lv denied 96 NY2d 707 [2001]). "Where, as here, the language of a contract is ambiguous, its construction presents a question of fact which may not be resolved by the court on a motion for summary judgment" (Pepco Constr. of NY, Inc. v CNA Ins. Co., 15 AD3d 464, 465 [2005]) or a motion to dismiss pursuant to CPLR 3211 (see Telerep, [*2]LLC v U.S. Intl. Media, LLC, 74 AD3d 401, 402 [2010]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 12, 2013