| J.W. Mays, Inc. v Snyder Fulton St., LLC |
| 2010 NY Slip Op 00104 [69 AD3d 572] |
| January 5, 2010 |
| Appellate Division, Second Department |
| J.W. Mays, Inc., Respondent, v Snyder Fulton Street,LLC, Appellant, et al., Defendant. |
—[*1] Holland & Knight, New York, N.Y. (Sean C. Sheely and Samuel Spital of counsel), forrespondent.
In an action, inter alia, for a judgment declaring that the plaintiff tenant is not obligatedunder the terms of its commercial lease to make substantial capital improvements to the subjectpremises, the defendant Snyder Fulton Street, LLC, appeals from an order of the Supreme Court,Kings County (Schmidt, J.), dated November 24, 2008, which granted those branches of theplaintiff's motion which were for partial summary judgment declaring that it is not obligatedunder the terms of the subject lease to correct or cure purported structural defects to thestairwells or roof, or to abate potential hazardous materials at the premises, and for summaryjudgment dismissing the third counterclaim of the defendant Snyder Fulton Street, LLC. Theappeal brings up for review so much of an order of the same court dated September 12, 2009, as,upon reargument, adhered to the original determination (see CPLR 5517 [b]).
Ordered that the appeal from the order dated November 24, 2008, is dismissed, as that orderwas superseded by the order dated September 12, 2009, made upon reargument; and it is further,
Ordered that the order dated September 12, 2009, is modified, on the law, by deleting theprovision thereof which, upon reargument, adhered to so much of the original determination inthe order dated November 24, 2008, as granted that branch of the plaintiff's motion which wasfor partial summary judgment declaring that it is not obligated under the terms of the subjectlease to correct or cure purported structural defects to the stairwells or roof, or to abate potentialhazardous materials at the premises, and substituting therefor provisions, upon reargument,vacating that portion of the original determination and, thereupon, denying that branch of theplaintiff's motion; as so modified, the order dated September 12, 2009, is affirmed insofar asreviewed; and it is further,
Ordered that one bill of costs is awarded to the defendant Snyder Fulton Street, LLC.[*2]
"[A] contract must be read as a whole in order todetermine its purpose and intent, and . . . single clauses cannot be construed bytaking them out of their context and giving them an interpretation apart from the contract ofwhich they are a part" (Matter of Friedman, 64 AD2d 70, 81 [1978] [internal quotationmarks and citation omitted]; see AimcoChelsea Land v Bassey, 6 AD3d 367, 368 [2004]). Furthermore, "[i]n interpreting theprovisions of a lease, the court should refrain from rewriting the lease under the guise ofconstruction, should not construe the language of the lease in such a way as would distort itsmeaning, and should not construe the language in a manner that would render one or more of itsprovisions meaningless" (Poughkeepsie Sav. Bank v G.M.S.Y. Assoc., 238 AD2d 327,327 [1997] [citations omitted]).
In this case, the plaintiff's predecessor, as tenant, constructed the subject premises afterentering into a long-term ground lease with the appellant's predecessor, as landlord. The leasemade the tenant responsible for "any structural or other changes, alterations or additions to anybuildings on the demised premises" necessary to comply, inter alia, with ordinances andregulations of the local, state, and federal governments. The language of the parties' lease did notlimit the tenant's responsibility under this provision to structural changes or alterations madenecessary because of the particular use to which it put the subject premises (cf. Linden Blvd.v Elota Realty Co., 196 AD2d 808, 810 [1993]; Wolf v 2539 Realty Assoc., 161AD2d 11, 16 [1990]). Under the circumstances presented, the plaintiff failed to make a primafacie showing that it had no obligation under the terms of the subject lease to correct or curepurported structural defects to the stairwells or roof, or to abate potential hazardous materials atthe premises (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The abatementof hazardous materials may constitute a structural change (see Linden Blvd. v Elota RealtyCo., 196 AD2d at 810 [asbestos abatement constitutes a structural change]).
Accordingly, upon reargument, the Supreme Court should have vacated so much of the orderdated November 24, 2008, as granted that branch of the plaintiff's motion which was for partialsummary judgment declaring that it is not obligated under the terms of the lease to correct orcure purported structural defects to the stairwells or roof, or to abate potential hazardousmaterials at the premises, and thereupon, should have denied that branch of the plaintiff'smotion.
The parties' remaining contentions are either academic or without merit. Rivera, J.P., Miller,Dickerson and Roman, JJ., concur.