Opinion
2017–10998 Index No. 56743/17
11-28-2018
ROUTE 202 RESTAURANT, LLC, Respondent, v. OLD CROMPOND ROAD, LLC, Appellant.
Welby, Brady & Greenblatt, LLP, White Plains, N.Y. (Alan D. Singer of counsel), for appellant. Samuel B. Mayer, Pleasantville, NY, for respondent.
Welby, Brady & Greenblatt, LLP, White Plains, N.Y. (Alan D. Singer of counsel), for appellant.
Samuel B. Mayer, Pleasantville, NY, for respondent.
WILLIAM F. MASTRO, J.P., SANDRA L. SGROI, COLLEEN D. DUFFY, HECTOR D. LASALLE, JJ.
DECISION & ORDER
ORDERED that the order is affirmed, with costs.
The plaintiff, a tenant pursuant to a commercial lease, commenced this action against the defendant, the owner of the subject premises, alleging that the defendant breached its obligation pursuant to paragraph 10.3 of the lease to provide a heat, ventilation, and air conditioning (hereinafter HVAC) unit in the subject premises. The defendant moved pursuant to CPLR 3211(a)(1) to dismiss the complaint, relying upon other provisions of the lease to argue that the lease did not require it to provide an HVAC unit. The Supreme Court denied the motion, and the defendant appeals. A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is barred by documentary evidence may be granted "only where the documentary evidence utterly refutes [the] plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Goshen v. Mutual Life Ins. Co. of N.Y. , 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 ).
Here, the contract was ambiguous as to whether the defendant was required to provide an HVAC unit, and thus, did not utterly refute the factual allegations of the complaint and conclusively establish a defense to the complaint as a matter of law (see Blum v. Rosenberg , 120 A.D.3d 529, 530, 990 N.Y.S.2d 844 ).
Accordingly, we agree with the Supreme Court's determination to deny the defendant's motion pursuant to CPLR 3211(a)(1) to dismiss the complaint.
MASTRO, J.P., SGROI, DUFFY and LASALLE, JJ., concur.