| Jackson & Wheeler, Inc. v Village of Pleasantville |
| 2008 NY Slip Op 09356 [56 AD3d 723] |
| November 25, 2008 |
| Appellate Division, Second Department |
| Jackson & Wheeler, Inc., Respondent, v Village ofPleasantville et al., Defendants, and Tomos, LLC, Appellant. (And a Third-PartyAction.) |
—[*1] Canter Law Firm, P.C., White Plains, N.Y. (Nelson E. Canter of counsel), forrespondent.
In an action, inter alia, to recover damages for breach of contract, the defendant Tomos, LLC,appeals, as limited by its brief, from so much of an order of the Supreme Court, WestchesterCounty (Murphy, J.), entered March 29, 2007, as granted that branch of the plaintiff's motionwhich was for leave to reargue its opposition to that branch of the motion of the defendantTomos, LLC, which was pursuant to CPLR 3211 (a) (1) and (7) to dismiss the breach of contractcause of action insofar as asserted against it, which had been determined in an order enteredNovember 17, 2006, and, upon reargument, vacated the provision in that order granting thatbranch of the motion and thereupon denied that branch of the motion.
Ordered that the order entered March 29, 2007, is reversed insofar as appealed from, on thelaw, with costs, and that branch of the plaintiff's motion which was for leave to reargue is denied.
The Supreme Court erred in granting that branch of the plaintiff's motion which was forleave to reargue, as it did not overlook or misapprehend the facts or law on that branch of theinitial motion of the defendant Tomos, LLC (hereinafter Tomos), which was to dismiss thebreach of contract cause of action insofar as asserted against it. In particular, the motion court didnot overlook or misapprehend the facts or law in determining that the concrete wall in the catchbasin did not fall within the scope of Tomos's contractual maintenance and repair obligations.Therefore, it should have denied that branch of the plaintiff's motion which was for leave toreargue.
Paragraph 48 of the lease between Tomos, as landlord, and the plaintiff, as tenant, provides[*2]that Tomos was to maintain and repair all structural parts ofthe subject building and the roof, except for the atrium constructed by the plaintiff. The plaintiffwas to maintain the premises and all electrical, air conditioning, heating, plumbing, and hot waterheating systems in good working condition. The plaintiff was to maintain all systems servicingthe premises, including, but not limited to, the plumbing system. The plaintiff was thusresponsible for the unclogging of drain and sewer stoppages, except sewer stoppages occurringoutside the premises not arising from the plaintiff's operations. Since there is no dispute that theblockage that caused the flooding giving rise to the instant action occurred in a catch basinlocated outside the premises, where the Village of Pleasantville had erected a concrete wall at theend of a drainpipe, contrary to Tomos's contention, the plaintiff is not responsible for thedamages.
The statements allegedly made by Tomos's principal do not show that the subject alterationof the catch basin necessitated a structural repair for which Tomos was responsible. Extrinsic andparol evidence is not admissible to create an ambiguity in a written agreement which is completeand clear and unambiguous on its face, as is the agreement here (see Madison Ave.Leasehold, LLC v Madison Bentley Assoc. LLC, 8 NY3d 59, 66 [2006]; Fukilman v 31stAve. Realty Corp., 39 AD3d 812, 813-814 [2007]). The interpretation of an unambiguouscontract is the function of the court. The parties' intent must be gleaned from the four corners ofthe relevant agreement (see Matter of Berns v Halberstam, 46 AD3d 808, 809 [2007];Matter of Civil Serv. Empls. Assn. v Patchogue-Medford School Dist., 2 AD3d 848, 849[2003]; Fishler v Fishler, 2 AD3d 487, 488 [2003]). Tomos is thus not responsible for thedrainage system on the premises, and Tomos bore no responsibility for avoiding or correctingnonstructural drainage and sewer stoppages occurring outside of the premises.
In light of our determination, we need not reach Tomos's remaining contentions. Spolzino,J.P., Covello, Angiolillo and Chambers, JJ., concur.