Opinion
570709/06.
Decided May 12, 2008.
Landlord appeals from a final judgment of the Civil Court of the City of New York, New York County (Barbara Jaffe, J.), entered on or about February 22, 2006, after a nonjury trial, which dismissed the petition in a commercial nonpayment summary proceeding.
PRESENT: McKEON, P.J., DAVIS, HEITLER, JJ.
Final judgment (Barbara Jaffe, J.), entered on or about February 22, 2006, reversed, with $30 costs, petition reinstated, and matter remanded for a calculation of additional rents by tenant in accordance with this decision and for entry of judgment accordingly.
Read together, the provisions of the cooperative's offering plan and the parties' governing lease agreement setting forth the methodology to be used in calculating "additional rent" are reasonably susceptible of more than one interpretation and therefore are ambiguous ( see World Monuments Fund, Inc. v Ninety-Five Madison Co., 47 AD3d 547). In view of the obvious ambiguity, evidence of the parties' course of conduct in calculating additional rent was appropriate to determine the parties' intent ( see e.g. Citibank, N.A. v 666 Fifth Avenue Limited Partnership, 2 AD3d 331). The record supports landlord's contention that the base year methodology should govern the computation of additional rent, inasmuch as landlord consistently billed for and tenant paid additional rent utilizing this method from the inception of the tenancy in the mid-1980's ( see Eighty Eight Bleeker Co., LLC v 88 Bleeker St. Owners, Inc., 34 AD3d 244).
Contrary to the view expressed below, the annual statements provided by landlord to tenant were sufficient to satisfy the lease provision requiring landlord to deliver to tenant "an accounting" of landlord's expenses prior to collecting additional rents. Thus, dismissal of the petition for landlord's failure to satisfy a "condition precedent" to tenant's obligation to pay additional rents was unwarranted.
This Constitutes the Decision and Order of the Court.