Green v. Hempstead Bank

Order entered July 11, 1966, herein appealed from, unanimously modified on the law to grant partial summary judgment to appellant in the amount of $1,140.80 and as so modified is otherwise affirmed, with $50 costs and disbursements to respondent. The parties disagree on the interpretation to be accorded paragraph 52 of a lease executed by and between defendant as tenant and plaintiffs’ predecessor in interest as landlord. The provision in question states in substance that the tenant agrees to pay as additional rent any and all increases of real estate taxes greater than such taxes imposed on the property for the first full year as fully assessed. The taxes originally assessed were later reduced through tax certiorari proceedings. The question involves a construction of the language and the intent of the parties as to whether the' original tax assessed or such tax as subsequently reduced was to represent the base tax upon which the tenant’s additional obligation should be calculated; in other words, what is the basic tax. The defendant tendered the sum of $1,140.80 as the measure of its obligation and the plaintiff refused. Thus under any construction this sum represents an admitted liability and accordingly judg 657 ment should be granted for that amount. To that extent there is no triable issue of fact (CPLR 3212). This disposition does not dispose of the basic underlying question of the interpretation to be given paragraph 52. That issue is reserved for trial (see City Bank Farmers Trust Co. v. J. & J. Slater, Inc., 303 N. Y. 971). Concur — Botein, P. J., Stevens, Tilzer and McNally, JJ.