SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

952 

CA 14-00366 

PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND WHALEN, JJ. 

 

ONEBEACON INSURANCE COMPANY, 

PLAINTIFF-APPELLANT-RESPONDENT, 

V MEMORANDUM AND ORDER

UNILAND PARTNERSHIP OF DELAWARE, L.P., 

DEFENDANT-RESPONDENT-APPELLANT.

 

COLUCCI & GALLAHER, P.C., BUFFALO (RYAN L. GELLMAN OF COUNSEL), FOR

PLAINTIFF-APPELLANT-RESPONDENT.

HOGAN WILLIG, PLLC, AMHERST (ROBERT W. MICHALAK OF COUNSEL), FOR

DEFENDANT-RESPONDENT-APPELLANT. 

Appeal and cross appeal from a judgment (denominated order) of

the Supreme Court, Erie County (Timothy J. Walker, A.J.), entered May

20, 2013. The judgment denied defendant’s motion for summary judgment

and denied plaintiff’s cross motion for summary judgment. 

It is hereby ORDERED that the judgment so appealed from is

unanimously modified on the law by granting plaintiff’s cross motion

and granting judgment in favor of plaintiff as follows:

It is ADJUDGED and DECLARED that plaintiff properly

exercised the early termination provision in the lease and

terminated the lease as of February 28, 2011 

and as modified the judgment is affirmed without costs.

Memorandum: Plaintiff appeals and defendant cross-appeals from a

judgment that denied defendant’s motion seeking, inter alia, partial

summary judgment on liability on its counterclaim and denied

plaintiff’s cross motion for summary judgment seeking a declaration in

its favor. Plaintiff and defendant entered into a lease agreement,

whereby plaintiff leased from defendant commercial office space. The

lease contained an early termination provision. The parties entered

into a first amendment to the lease on July 30, 2003 and a second

amendment to the lease on October 31, 2005. We agree with plaintiff

that it properly exercised its early termination rights under the

lease, and that Supreme Court thus erred in denying plaintiff’s cross

motion seeking a declaration to that effect. We therefore modify the

judgment accordingly. 

We reject defendant’s contention that the second amendment to the
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CA 14-00366 

lease redefined the lease term and commencement date such that

plaintiff prematurely exercised its early termination rights. We must

examine the lease and second amendment to the lease as a whole,

“giv[ing] effect to the intent of the parties as revealed by the

language and structure of [both]” (Reda v Eastman Kodak Co. [appeal

No. 2], 233 AD2d 914, 914). Upon our review of those documents, we

conclude that the lease as amended is not “ ‘reasonably susceptible of

more than one interpretation’ ” and thus is not ambiguous (McCabe v

Witteveen, 34 AD3d 652, 654, quoting Chimart Assoc. v Paul, 66 NY2d

570, 573). Here, the primary purpose of the second amendment to the

lease, as expressed in the third “Whereas” clause, was to increase the

square footage that plaintiff leased from defendant. The sections

relied on by defendant in support of its contention that the second

amendment redefined the lease term and commencement date merely set

forth the date by which plaintiff paid additional rent for occupying

the increased square footage. Indeed, the second amendment to the

lease contained the same lease termination date as the original lease. 

Thus, we conclude that a fair and reasonable interpretation of the

parties’ intent in entering into the second amendment to the lease was

to increase the square footage and not to alter the lease term or the

early termination date (see Matter of Cromwell Towers Redevelopment

Co. v City of Yonkers, 41 NY2d 1, 6). 

Entered: October 3, 2014 Frances E. Cafarell

Clerk of the Court