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Judge Oing Click here to see Judicial Profile http://nycourts.law.com/CourtDocumentViewer.asp?view=Document&docID=120747 PETITIONER landlord moved for summary judgment and a final judgment of possession. Respondent tenant cross-moved for summary judgment dismissing the petition. Respondent asserted petitioner was misreading the rent escalation clause of the parties’ lease. Petitioner argued that even if a provision of the lease was deemed ambiguous, respondent’s conduct showed that petitioner’s interpretation of the provision was correct. The court agreed, stating respondent’s theory was unavailing when considered with the voluntary payment doctrine. It stated the doctrine barred recovery of payments voluntarily made with full knowledge of the facts. The court noted the record showed respondent paid the newly calculated fixed rental each year without protest or inquiry. Thus, even if the court were to conclude the lease provision was ambiguous, it noted the parties’ conduct of performance under the lease was considered the most persuasive evidence of the agreed upon intentions. Hence, petitioner’s motion was granted.

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