Benderson v. Wiper Check Inc.

Green, J. P., and Balio, J.

(dissenting in part). We respectfully dissent in part. The lease does not define what is meant by the term supermarket, and the phrase “another supermarket of similar size” is ambiguous (see, Burber v Jilamb Prime Meat, 115 Misc 2d 976). Thus, extrinsic evidence may be considered in determining the intent of the parties, and, on this record, factual issues exist whether the parties discussed that lease provision and whether the parties intended the phrase “another supermarket of similar size” to refer to an*905other food supermarket like Bells Supermarket or to another…