622 BUILDING COMPANY LLC v. EASTMAN SOFTWARE INC

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Supreme Court, Appellate Division, First Department, New York.

622 BUILDING COMPANY, LLC, Plaintiff-Appellant, v. EASTMAN SOFTWARE, INC., Defendant-Respondent.

Decided: August 24, 2000

SULLIVAN, P.J., NARDELLI, TOM, MAZZARELLI and WALLACH, JJ. Donald A. Harwood, for Plaintiff-Appellant. Matthew E. Hearle, for Defendant-Respondent.

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered April 8, 1999, which, inter alia, denied so much of plaintiff landlord's motion as sought partial summary judgment on its claim to recover the cost of supplemental air-conditioning as additional rent under its lease with defendant tenant, unanimously affirmed, without costs.

The motion court correctly held that the pertinent lease provisions are ambiguous as to whether they apply to the air conditioning system that is dedicated to one room in the leased premises and separately controlled by the tenant or only to the building-wide central air conditioning system controlled by the landlord.

In reaching this conclusion, though, we emphasize that the pertinent lease clauses otherwise are clear, in that the landlord must be compensated for overtime air-conditioning provided throughout the premises by the landlord, at the agreed-upon rate.   However, applying that particular, and unremarkable, language to this unique situation leads to a remarkable result, raising factual issues regarding the intent of the parties.   Therein, we find the ambiguity that precludes summary disposition in favor of the landlord.

MEMORANDUM DECISION.