| Franklin Apt. Assoc., Inc. v Westbrook Tenants Corp. |
| 2007 NY Slip Op 06630 [43 AD3d 860] |
| September 11, 2007 |
| Appellate Division, Second Department |
| Franklin Apartment Associates, Inc.,Respondent, v Westbrook Tenants Corp., Appellant. |
—[*1] Lehrman, Kronick & Lehrman, LLP, White Plains, N.Y. (Mark A. Guterman of counsel), forrespondent.
In an action for a judgment declaring that the defendant is responsible for the repair of certainitems of plumbing known as "shower bodies," for an injunction compelling the defendant torepair the "shower bodies," and to recover damages for injury to property, the defendant appealsfrom an order of the Supreme Court, Westchester County (Jamieson, J.), dated September 26,2006, which granted the plaintiff's motion, in effect, for summary judgment declaring that thedefendant is responsible for the repair of the "shower bodies" and for summary judgmentdismissing the affirmative defenses, and denied its cross motion, in effect, for summary judgmentdeclaring that it was not responsible for the repair of the "shower bodies" and for summaryjudgment dismissing the plaintiff's claims for injunctive relief and to recover damages for injuryto property.
Ordered that the order is affirmed, with costs, and the matter is remitted to the SupremeCourt, Westchester County, for the entry of an interlocutory judgment declaring that thedefendant is responsible for the repair of the "shower bodies" and thereafter for an assessment ofdamages and entry of a final judgment.
The plaintiff is a holder of stock and proprietary leases appurtenant to several apartments in abuilding owned by the defendant cooperative corporation. Leaks developed in the bathrooms ofseveral apartments. Specifically, the leaks developed in items of plumbing known as "showerbodies." The parties could not agree on who was responsible for the repairs. The plaintiff [*2]commenced this action, inter alia, seeking a judgment declaring thatthe defendant was responsible for the repairs under the terms of the appurtenant leases. Theplaintiff moved, in effect, for summary judgment declaring that the defendant was responsible forthe repairs and for summary judgment dismissing the defendant's affirmative defenses. Thedefendant cross-moved, in effect, for summary judgment declaring that it was not responsible forthe repairs and for summary judgment dismissing the plaintiff's claims for injunctive relief and torecover damages for injury to property. In support of the motion and the cross motion, bothparties offered differing interpretations of the relevant provisions of the leases. The SupremeCourt granted the plaintiff's motion and denied the defendant's cross motion. We affirm.
"The fundamental, neutral precept of contract interpretation is that agreements are construedin accord with the parties' intent" (Greenfield v Philles Records, 98 NY2d 562, 569[2002]). When the terms of a written contract are clear and unambiguous, the intent of the partiesmust be found within the four corners of the contract, giving practical interpretation to thelanguage employed and the parties' reasonable expectations (id.; see Correnti v Allstate Props., LLC, 38AD3d 588, 590 [2007]). The construction and interpretation of an unambiguous writtencontract is an issue of law within the province of the court (see Katina, Inc. v Famiglietti,306 AD2d 440, 441 [2003]).
Here, paragraph 2 of the leases provides that "[t]he Lessor [the defendant] shall at its expensekeep in good repair the building including all of the apartments, the sidewalks and courtssurrounding the same, and its equipment and apparatus except those portions the maintenanceand repair of which are expressly stated to be the responsibility of the Lessee [the plaintiff]pursuant to Paragraph 18 hereof." In relevant part, paragraph 18 provides: "[t]he Lessee. . . shall be solely responsible for the maintenance, repair, and replacement ofplumbing, gas and heating fixtures and equipment and such refrigerators, dishwashers,removable and through-the-wall air conditioners, washing machines, ranges and other appliances,as may be in the apartment. Plumbing, gas and heating fixtures as used herein shall includeexposed gas, steam and water pipes attached to fixtures, appliances and equipment and thefixtures, appliances and equipment to which they are attached, and any special pipes orequipment which the Lessee may install within the wall or ceiling, or under the floor, but shallnot include gas, steam or other pipes or conduits within the walls, ceiling or floors or heatingequipment which is part of the standard building equipment."
The defendant argues that the shower bodies are plumbing "fixtures" or "equipment" withinthe meaning of paragraph 18. The terms are not defined in the leases. However, giving a practicalinterpretation to the language of the leases and the parties' reasonable expectations, repair of theshower bodies is the responsibility of the defendant, either as part of the "pipes or conduitswithin the walls" that are part of the "standard building equipment," or as maintenance and repairnot otherwise delegated to the plaintiff.
The parties agree that the shower bodies are used, inter alia, to control the mix of hot andcold water to the shower and/or bathtub. However, this does not appear wholly accurate. Rather,based on the affidavits, installation instructions, and parts lists submitted by the parties, the partidentified as the shower body is a T-shaped metal casing in which such mixing occurs. Theinstallation instructions reveal that the shower body is located behind the finished walls, and isattached to the framing and either screwed or soldered onto the water supply lines. (Here, theshower [*3]bodies were installed as part of the originalplumbing.) Thus, unlike various other parts of the shower/bathtub unit, such as the shower head,pressure balance cartridge, safe-temp control cartridge, and handles, the shower bodies areaffixed to the building and its water supply lines, and cannot be accessed by tenants withoutopening the walls. We agree with the Supreme Court that the leases evince an intent to draw ageneral distinction between pipes, conduits, and other items within the walls, ceiling, and floors,and those without, with responsibility for the former resting with the defendant (see e.g. Machado v Clinton Hous. Dev.Co., Inc., 20 AD3d 307 [2005]). Further, such an interpretation would give effect to thereasonable expectations of the parties. In general, a tenant would not reasonably expect to beliable for repairs that require the opening of walls, ceilings, or floors. Rather, in general, suchrepairs implicate issues affecting the structural integrity or the permanent features or systems of abuilding, and the parties to the lease would reasonably expect these repairs to be made by thelandlord. In sum, responsibility for the repair of the shower bodies was properly placed with thedefendant (cf. Machado v Clinton Hous. Dev. Co., Inc., supra).
The defendant's remaining contentions are without merit.
Since this is, in part, a declaratory judgment action, we remit the matter to the SupremeCourt, Westchester County, for the entry of an interlocutory judgment declaring that thedefendant is responsible for the repair of the shower bodies (see Lanza v Wagner, 11NY2d 317, 334 [1962], appeal dismissed 371 US 74 [1962], cert denied 371 US901 [1962]), and thereafter for an assessment of damages and entry of a final judgment. Crane,J.P., Ritter, Dillon and Carni, JJ., concur.