57 A.D.2d 134 | N.Y. App. Div. | 1977
Defendants Voxakis Enterprises, Inc. [Voxakis] and P. K. Management Corporation [P.K.] appeal from a judgment which declared that plaintiff-respondent Reltron
Brighton Bowl was built in 1955 by 112 South Avenue, Inc., which then owned the lots at 1717 and 1749-1755 East Avenue. The lots lie on the south side of East Avenue and are separated by a middle lot, 1743 East Avenue, which was then owned by one Howard Kessler. Parking for patrons for Brighton Bowl was available in three parking areas surrounding the establishment. The north, or front, portion of 1717 East Avenue was one such area. A second, known as the “lower parking area”, was the south, or rear, portion of 1743 East Avenue, where 112 South Avenue, Inc. had arranged for parking under a 1954 written lease with Kessler. The third parking area was the one now in dispute—namely, the south, or rear, portion of 1749-1755 East Avenue, known as the “upper parking area”.
In November, 1958 112 South Avenue, Inc. entered into a written agreement to build and lease a trading stamp redemption store to Top Value Enterprises, Inc. on the lot at 1749-1755 East Avenue. In the lease agreement, 112 South Avenue, Inc. undertook to “Provide a hard surfaced blacktopped off-the-street parking area sufficient to accommodate approximately fifty (50) cars” and to “Provide adequate entrance and exit doors to the parking area at the rear of the premises”. The lease agreement was signed on behalf of the lessor by “Fred Forman, Treas.” The building constructed for Top Value included an east wing with spaces for three smaller stores. In 1959 those spaces were leased to Lilac Laundry, Inc., Salon D’Andre, Inc., and Mildred Tuttle, respectively. In each of the three leases 112 South Avenue, as lessor, agreed “to grade and install a blacktop parking area on or before June 1, 1959, or as soon thereafter as is possible, and to permit the tenant adequate equal parking facilities with other tenants of
On or about June 1, 1959 the properties at 1749-1755 East Avenue were transferred by 112 South Avenue, Inc. to Raye-Namrof, Inc. Both corporations were closely held and had some of the same principals, including members of the For-man family. Raye-Namrof, Inc. was consolidated with B. For-man Company into B. Forman Company, Inc. in October, 1961.
The lease under which Reltron claims exclusive use of the upper parking area was negotiated in 1960 between American Bowling Enterprises, Inc. (which later became Reltron Corporation) and 112 South Avenue, Inc. By a written agreement dated August 5, 1960, 112 South agreed to sell to American the equipment and other personalty of Brighton Bowl and to lease to American the premises in which the business was conducted. The agreement provided that a lease to be executed later would demise to American the upper parking area, which was described in the agreement as being "presently used as a parking area under a verbal lease from Raye-Namrof, Inc. to 112 South Avenue, Inc.” The agreement was signed on behalf of 112 South by "Fred Forman, Treas.”
By written lease dated September 1, 1960 the upper parking area was demised to American for a monthly rental of $150. The lease described the parking area as follows: "The parking lot in the rear of the building located at 1749-1755 East Avenue as now used in connection with the operation of Brighton Bowl, and being part of the premises conveyed to the landlord by deed recorded in Monroe County Clerk’s office on June 1, 1959 * * * said premises to be used for a parking lot only” (emphasis supplied). The lease named Raye-Namrof, Inc., rather than 112 South Avenue, Inc., as lessor, but it was signed on behalf of Raye-Namrof by "Fred Forman, Treas.” The lease further provided that its term would be coincident with the term of a lease dated August 5, 1960, by which 112 South Avenue, Inc. had demised the Brighton Bowl premises at 1717 East Avenue to American Bowling for 20 years with two 10-year renewal options. The latter lease was also signed on behalf of the lessor by "Fred Forman, Treas.” At the time of trial in February, 1975 Reltron, as successor to American, paid rent for Brighton Bowl to Raye-Namrof, Inc., as agent for
In 1967 Top Value entered into a new lease with B. Forman Company, Inc. (which had by then acquired title to the properties at 1749-1755 East Avenue) in which the lessor agreed "to permit Lessee, its customers, employees, and invitees to use the parking area adjoining the demised premises to the side and the rear thereof’. By a later agreement, the term of the lease was extended until May 31, 1972.
On May 8, 1972 B. Forman Company, Inc. conveyed the 1749-1755 East Avenue properties by deed to defendant Voxakis. On October 4, 1973, Top Value having failed to renew its lease, Voxakis leased the former Top Value store to P.K., which remodeled the building and opened it in February, 1974 as a Pizza Kitchen restaurant. The lease purported to grant to P.K., its customers, employees and suppliers "the right * * * to park their vehicles on the premises outlined on schedule 'A-2’ in common with other tenants of 1749-1755 East Avenue and, as to the rear parking area, in common also with American Bowling Enterprises, Inc. [now Reltron]”. "Schedule 'A’ ” was a map of the lot at 1749-1755 East Avenue which clearly showed a large blacktopped area in the rear, or south (i.e., the "upper parking area”), and a smaller blacktopped area in the northeast corner.
Customers, employees and suppliers of the Pizza Kitchen restaurant began using the upper parking area regularly. When Reltron’s protest letter in September, 1974 failed to dissuade Voxakis and his tenants from using the area, Reltron commenced this action. After trial the court issued a memorandum decision expressing the view that Reltron was obliged to share the upper parking area with the tenants of the small shops on the 1749-1755 East Avenue lot whose leasehold interests "were created prior to the date of the lease of [the upper parking area] to the plaintiff in this action”. But because plaintiff’s September 1, 1960 lease antedated the October 4, 1973 lease from Voxakis to P.K., Trial Term reasoned that "No parking privileges remained in this area for transfer to the co-defendant, P.K. Management Corporation”, so that Reltron was entitled to declaratory and injunctive relief.
We first address the question whether Voxakis was bound by the terms of the September 1, 1960 lease between Raye-Namrof, Inc. and Reltron’s predecessor. "The owner of leased
The legal principles to be applied in construing a lease are familiar enough. "A lease, like any other contract, is to be interpreted in light of the purposes sought to be attained by the parties” (Farrell Lines v City of New York, 30 NY2d 76, 82). It should be interpreted as a whole, all writings forming parts of the same transaction being viewed together (North Shore Mart v Grand Union, 58 Misc 2d 640, 643). It is to be construed so as to carry out the parties’ intent, gathered if possible from the language of the lease (Matter of Loew’s Buffalo Theatres, 233 NY 495, 499; Orr v Doubleday, Page & Co., 223 NY 334, 341; Arrathoon v Pergament Oceanside Corp., 53 Misc 2d 959, 961, affd 26 AD2d 626, affd on opn at Special Term 19 NY2d 923, 924; Pyramid Investors Co. v Medina-Maple, Inc., 72 Misc 2d 893, 895), or as it is sometimes put, "from the four corners of the instrument” (Buell v Kresge Co., 177 Misc 686, 687, affd 263 App Div 931). To the extent that such intent is demonstrated by the expression of the parties in the lease, that expressed intent will control (Raleigh Assoc. v Henry, 302 NY 467, 473; 33 NY Jur, Landlord and Tenant, § 78). If it can be said that the language of the lease is plain and unambiguous as a matter of law, then the court must limit itself in construing the lease to the intention of the parties as found in the language used to express their intention, and resort may not be had to extrinsic evidence of the intentions or acts of the parties (Brainard v New York Cent. R. R. Co., 242 NY 125, 133; see Wendel Foundation v Moredall Realty Corp., 282 NY 239, 244). It is only where there remains an ambiguity after examination of the language of the lease
We are of the opinion that Reltron’s lease of the upper parking area—and specifically the phrase, "as now used in connection with the operation of Brighton Bowl”—is ambiguous and therefore subject to parol interpretation. Mindful that "words are never to be construed as meaningless if they can be made significant by any reasonable construction” (67 Wall Street Co. v Franklin Nat. Bank, 37 NY2d 245, 248), we think that the words "as now used” permit and indeed compel resort to parol evidence to determine how the upper parking area was used at the time when Reltron’s lease was executed.
It will be recalled that in its November 20, 1958 lease to Top Value Enterprises, 112 South Avenue, Inc. agreed to furnish Top Value with an off-street parking area sufficient to accommodate approximately 50 cars. At trial there was some dispute as to the intended location of that parking area. Reltron contends that the parties in 1958 contemplated that the area would be in the northeast corner of the 1749-1755
The evidence as to the conduct of the parties during more
In sum, we find that Reltron’s predecessor did not enjoy exclusive use of the upper parking area prior to the September 1, 1960 lease and was not granted exclusive use by that lease. Top Value, by virtue of its earlier lease, enjoyed the right to use the area in common with Reltron’s predecessor and to park some, if not all, of its authorized 50 vehicles there. When Top Value’s last lease renewal expired on May 31, 1972, Top Value’s interest reverted to Voxakis, which had by then become owner of the premises. Therefore, contrary to the conclusion reached by Trial Term, Voxakis did have sufficient interest in the upper parking area to support its transfer to P. K., by lease dated October 4, 1973, of the right to park cars in the upper parking area in common with Reltron. Accordingly, the judgment should be reversed, the injunction vacated and the complaint dismissed.
Judgment unanimously reversed, on the law and facts, with costs, injunction vacated and complaint dismissed.