WORLD MONUMENTS FUND INC v. NINETY FIVE MADISON COMPANY (2008)

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 N.Y.2d 570, 573, 498 N.Y.S.2d 344, 489 N.E.2d 231 [1986] ).

Reading the disputed provision as a whole (see Williams Press v. State of New York, 37 N.Y.2d 434, 440, 373 N.Y.S.2d 72, 335 N.E.2d 299 [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 A.D.3d 248, 251, 794 N.Y.S.2d 374 [2005];  Empire Mut. Ins. Co. v. Applied Sys. Dev. Corp., 121 A.D.2d 956, 960, 505 N.Y.S.2d 607 [1986] ).

We have considered defendant's remaining contentions and find them unavailing.