Frank B. Hall & Co. of New York, Inc. v. Orient Overseas Associates , 425 N.Y.S.2d 66 ( 1979 )

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs. Article 61(b) of the lease relates tax escalation to "the issuance of a temporary or permanent Certificate of Occupancy for the Building of which the demised premises are a part and which Certificate permits Tenant to enter into occupancy of the demised premises”. Article 36 on the other hand explicitly refers the commencement of rent to the time when "a Certificate of Occupancy (temporary or final) has been issued by the Department of Buildings of the City of New York, permitting Tenant’s use of the demised premises for the purposes for which the same have been leased” (emphasis supplied). The lease contemplated a good deal of tenant’s work in the premises between "occupancy” under article 61(b) and "use * * * for the purposes for which * * * leased” under article 36. The difference in the language of the two provisions, by which the parties must be deemed to have intended different meanings, makes clear that all that was required to trigger the tax escalation provision of article 61(b) was the issuance of a temporary certificate of occupancy. Since that occurred on December 23, 1971 that is the base date for tax escalation purposes.