BUILDING SERVICE LOCAL 32B-J PENSION FUND Plaintiffs-res-ap, v. 101 LIMITED PARTNERSHIP, Defendant-Appellant-res

3257-3258. BUILDING SERVICE LOCAL 32B-J PENSION FUND Plaintiffs-res-ap, v. 101 LIMITED PARTNERSHIP, Defendant-Appellant-res — Stempel Bennett Claman & Hochberg, P.C., New York (Richard L. Claman of counsel), for appellant-res — Proskauer Rose, LLP, New York (Michael T. Mervis of counsel), for respondents-ap — Judgment, Supreme Court, New York County (Jeffrey K. Oing, J.), entered June 7, 2016, after a nonjury trial, awarding plaintiffs a sum of money, unanimously modified, on the law, to direct that prejudgment interest on the breach of contract claims for the years 2008 and 2009 be calculated based on the accrual dates of May 1, 2009 and May 1, 2010, respectively, and to vacate the dismissal of the first counterclaim and to remand and reopen the trial on that counterclaim, in accordance with this decision, and otherwise affirmed, without costs.

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3257-3258. BUILDING SERVICE LOCAL 32B-J PENSION FUND Plaintiffs-res-ap, v. 101 LIMITED PARTNERSHIP, Defendant-Appellant-res — Stempel Bennett Claman & Hochberg, P.C., New York (Richard L. Claman of counsel), for appellant-res — Proskauer Rose, LLP, New York (Michael T. Mervis of counsel), for respondents-ap — Judgment, Supreme Court, New York County (Jeffrey K. Oing, J.), entered June 7, 2016, after a nonjury trial, awarding plaintiffs a sum of money, unanimously modified, on the law, to direct that prejudgment interest on the breach of contract claims for the years 2008 and 2009 be calculated based on the accrual dates of May 1, 2009 and May 1, 2010, respectively, and to vacate the dismissal of the first counterclaim and to remand and reopen the trial on that counterclaim, in accordance with this decision, and otherwise affirmed, without costs.

In this commercial landlord-tenant action, the trial court correctly determined that the fair and reasonable meaning of the term “expenses” in the net cash flow provision of the parties’ leases did not include reserves required to be set aside by defendant as a condition of refinancing, by considering the term in the context of the parties’ negotiation history, as evidenced by earlier drafts of the leases and the testimony of witnesses involved in the negotiations (see Dorel Steel Erection Corp. v. Seaboard Sur. Co., 291 AD2d 309 [1st Dept 2002]). Defendant’s contention that this interpretation does not make business sense is not a basis on which to rewrite the contract to insert a provision expressly excluded (see Reiss v. Financial Performance Corp., 97 NY2d 195, 200-201 [2001]). Moreover, the business context sought to be introduced by defendant had no connection to the parties’ dealings (see Matter of Reuters Ltd. v. Dow Jones Telerate, 231 AD2d 337, 343 [1st Dept 1997]).

BUILDING SERVICE LOCAL 32B-J PENSION FUND Plaintiffs-res-ap, v. 101 LIMITED PARTNERSHIP, Defendant-Appellant-res

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