Opinion
8244 Index 652789/15
01-29-2019
D.S. 53-16-F ASSOCIATES, Plaintiff–Appellant, v. GROFF STUDIOS CORP., Defendant–Respondent.
Howard Justvig, Fresh Meadows, for appellant. Smith, Gambrell & Russell, LLP, New York (John T. Van Der Tuin of counsel), for respondent.
Howard Justvig, Fresh Meadows, for appellant.
Smith, Gambrell & Russell, LLP, New York (John T. Van Der Tuin of counsel), for respondent.
Renwick, J.P., Richter, Mazzarelli, Webber, Kern, JJ.
The fact-finding determination of a court should not be disturbed on appeal unless its conclusions could not have been reached under any fair interpretation of the evidence, particularly where the findings of fact rest largely on the credibility of witnesses (see Thoreson v. Penthouse Intl., 80 N.Y.2d 490, 495, 591 N.Y.S.2d 978, 606 N.E.2d 1369 [1992] ).A fair interpretation of the evidence supports the court's finding that plaintiff did not prove that the "freight elevator" cited in the lease rider referred to the building's northerly interior elevator, rather than the exterior sidewalk elevator [which was later removed] immediately outside plaintiff's store at the time the 1978 lease was executed.
Where the parties' agreement contains an ambiguous provision, their course of conduct with regard thereto is the "most persuasive evidence" of their agreed intention (see Gulf Ins. Co. v. Transatlantic Reins. Co., 69 A.D.3d 71, 85, 886 N.Y.S.2d 133 [1st Dept. 2009] ). Here, plaintiff presented no evidence of a course of conduct that supported its interpretation of the lease rider.
We have considered plaintiff's remaining arguments and find them unavailing.