Vitale v. Friedman

Order and judgment (one paper), Supreme Court, New York County (Carol Huff, J.), entered April 14, 1995, which, in a declaratory judgment action concerning whether the renewal rent of the subject premises is to be determined by appraisal or arbitration, insofar as appealed from, converted the action into a special proceeding pursuant to CPLR article 76 and directed the parties to proceed with an appraisal, unanimously affirmed, with costs.

The IAS Court correctly held that the parties’ lease was unambiguous in calling for an appraisal of fair rental value upon renewal, and properly rejected defendants’ resort to extrinsic evidence for purposes of showing that arbitration was intended (see, W.W.W. Assocs. v Giancontieri, 77 NY2d 157 , 162-163). The pertinent lease provision, which refers throughout only to "appraisers”, never to "arbitrators”, was clearly intended to resolve a typical valuation dispute (see, e.g., Brown v Estate of Rosenstock, 161 AD2d 221 ; Rice v Ritz Assocs., 88 AD2d 513 , affd 58 NY2d 923 ), and we do not think ambiguity is introduced by reason of the fact that the appraisers could be experts in the field of nursing homes as well as real estate; that the renewal rent was to be determined upon the basis of the fair rental rate of nursing homes of comparable size in the same geographic area, rather than highest or best use or some