Robshaw v. Health Management, Inc.

— Order affirmed, with costs. Memorandum: Summary judgment should be denied. We disagree with the dissenters that the provision inserted in paragraph 19 nullifies the provisions contained elsewhere in that section requiring notice and opportunity to cure as preconditions to acceleration. The inserted clause, as we read it, does no more than define precisely what the parties intended by the phrase in the first sentence in paragraph 19: “If default be made in the payment of the rent” with these words: “if Tenant shall fail to remit rental payments on their due date, and said non-remittal continues for twenty (20) days, Tenant shall be in default and shall have breached this Lease Agreement”. The parties, to avoid any misunderstanding about the number of days a rental installment must be delinquent to be considered a rental default under the lease, have simply agreed that if a rental installment remains unpaid for 20 days, that constitutes a default and a breach of the lease. Such construction conforms to the general rule that a contract should be interpreted to avoid inconsistencies and to give meaning to all of the terms (see 22 NY Jur 2d, Contracts, §§ 221, 222). All concur, except Denman and Callahan, JJ., who dissent and vote to modify, in the following memorandum.