176 A.D.2d 1049 | N.Y. App. Div. | 1991
Cross appeals from an order of the Supreme Court (Harlem, J.), entered January 30, 1991 in
In 1978, plaintiff acquired Ithaca Savings and Loan Association and undertook its obligations as tenant under a 20-year lease for a bank building in the Village of Johnson City, Broome County, owned by defendant Harry Minkoff and Abraham Kurtzer,
In late 1978, plaintiff’s counsel sent a letter to Minkoff and Kurtzer demanding that a number of structural repairs be made. Apparently dissatisfied with the action taken by defendants in response, plaintiff subsequently commenced the instant action seeking damages and an order directing defendants to perform the necessary structural repairs. Following joinder of issue, plaintiff moved for partial summary judgment on the issue of liability and defendants cross-moved for summary judgment dismissing the complaint. Supreme Court denied both motions and these cross appeals followed.
We disagree. Defendants contend that paragraph 11 of the lease was expressly intended to cover the responsibility for structural repairs during the builder’s one-year warranty period following completion of construction. While plaintiff’s position appears to reflect a sounder interpretation of the literal language of paragraph 11 taken in isolation, that interpretation does create apparent conflicts with other provisions of the lease. For instance, paragraph 31 of the lease unqualifiedly imposes the general duty of repairs upon the tenant. Furthermore, paragraph 33 recites that "[i]t is distinctly understood that this is a net, net, net lease” (emphasis supplied). Net lease provisions are typically presumed to impose the responsibility for all expenses arising from the property, including the costs of repairs of every nature, upon the tenant (see, H.K.H. Co. v American Mtge. Ins. Co., 490 F Supp 1201, 1202, affd 685 F2d 315; Matter of Overmyer Co., 12 Bankr 777, 786, n 23, affd 30 Bankr 823). Thus, defendant’s construction is supported by the rule that contracts are to be interpreted to avoid inconsistencies and to give meaning to all of the terms contained therein (see, Barrow v Lawrence United Corp., 146 AD2d 15,18).
It follows from the foregoing that the entire language of the lease agreement raises sufficient doubts as to the parties’ intent regarding responsibility for structural repairs after the first year of occupancy upon completion of the building, and that resort to extrinsic evidence to interpret the agreement is justified (see, supra). Each side has submitted extrinsic evidence to support their respective interpretations and, thus, Supreme Court correctly denied the motions for summary judgment (see, supra, at 21).
Casey, J. P., Mikoll, Yesawich Jr. and Crew III, JJ., concur. Ordered that the order is affirmed, without costs.
Abraham Kurtzer died in 1985. Defendants Bess Kurtzer and Marvin Kurtzer, his surviving wife and son, are named in this action individually and as executors of his estate. The action was discontinued against Sydel Minkoff.