THE CONTRACT WAS AMBIGUOUS CONCERNING WHETHER PLAINTIFF OR DEFENDANT WAS RESPONSIBLE FOR PAYING PROPERTY TAXES; THEREFORE THE DEFENDANT’S COUNTERCLAIM, WHICH WAS BASED UPON AN INTERPRETATION OF THE CONTRACT, SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined the defendant’s third counterclaim seeking reimbursement for property taxes should not have been dismissed because the terms of the related contract were ambiguous. As part of a purchase agreement which never closed, the defendant was allowed to remain in the property in return for paying the property tax for six months. If the defendant remained in the property after six months defendant was to pay $800/month rent. Defendant remained in the property after six months but no one paid the taxes. Eventually defendant paid the accumulated property tax to avoid a tax auction:

Inasmuch as “a contract generally incorporates the state of the law in existence at the time of its formation” ,,, , defendant, as the titled owner, would have been responsible for the property taxes, absent a contractual provision to the contrary. Here, however, the contract was not truly silent on the issue of property taxes. It specifically provided that defendant would pay property taxes in one situation but then failed to address who would pay the property taxes in another situation … . Based on the maxim expressio unius est exclusio alterius, which applies to contracts as well as statutes … , “[w]here a [document] describes the particular situations in which it is to apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted and excluded” … . Inasmuch as the determination of the intent of the parties depends on a choice among reasonable inferences, we conclude that resolution of the third counterclaim should be left to a trier of fact. Dunn Auto Parts, Inc. v Wells, 2021 NY Slip Op 05185, Fourth Dept 10-1-21