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Plaza v. Great Atlantic & Pacific Tea Co.

44 N.Y. 791 Court N.Y. Decision date 1978-05-02 English

Decision Majority · Dissent — Gabrielli, J.

Contents

Majority

p. 791
Bensons Plaza, Respondent, v Great Atlantic & Pacific Tea Company, Inc., Appellant, et al., Defendant.
Argued February 17,1978;
decided May 2, 1978
p. 792
APPEARANCES OF COUNSEL
Michael Beilewech, Jr., for appellant.
Harold M. Halpern for respondent.

OPINION OF THE COURT

Memorandum.

Order reversed and summary judgment granted to defendant tenant. The disputed lease term may, of course, be viewed in the context of surrounding circumstances. It is the rare

Dissent

p. 793
writing that requires no interpretation. (3 Corbin, Contracts, § 535; Restatement, Contracts 2d, § 228, Comment b; § 238, Comment b [Tent Draft No. 5]; cf. Hotel Credit Card Corp. v American Express Co., 13 AD2d 189 , 193.) The point is, however, that even in light of all the surrounding circumstances, the highly probable inference is that "the rental under this lease” was intended to mean the rent stipulated for the first year. If the landlord intended otherwise, it should have been made explicit. In the absence of the tender of extrinsic evidence to establish otherwise, the court establishes the meaning of the provision in question from within the four corners of the agreement and the general circumstances of the relation between the parties, including the subject matter of the agreement (Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285 , 290-291; Cushman & Wakefield v Dollar Land Corp., 36 NY2d 490 , 494-495; Matter of Surrey Strathmore Corp. v Dollar Sav. Bank, 36 NY2d 173 , 176-177).

(dissenting). I dissent and vote to affirm on the well-reasoned opinion of Mr. Justice Richard J. Cardamone writing for a majority at the Appellate Division. Quite apart from the rationale employed by him, it is the unusual case where an annual tax escalation clause, such as in this very case, is made applicable to but one year, which has no basis in logic and makes no commercial sense, rather than for the entire term of the lease.

Chief Judge Breitel and Judges Jasen, Jones, Wachtler, Fuchsberg and Cooke concur; Judge Gabrielli dissents and votes to affirm in a separate memorandum.

Order reversed, with costs, and summary judgment granted to defendant tenant dismissing the first cause of action in a memorandum.

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