Appeal by tenant from an order of the Civil Court, Kings County (S. Goodheartz, J.H.O.), entered September 17, 2003, denying its motion for summary judgment dismissing the proceeding.

Order unanimously affirmed without costs.

In this commercial summary nonpayment proceeding, the predicate notice was sufficient, as landlord complied with the requirements of RPAPL 711 (2) in stating an approximate good faith amount alleged to be due for water and sewer charges accrued over the course of the tenancy.

The court below properly denied tenant's motion for summary judgment, since there are questions of fact and credibility as to the existence of a requirement of prior notice to tenant of water and sewer amounts due and whether a meter was installed in
accordance with the lease (see generally Brusco v Braun, 199 AD2d 27, 31-32 [1993]). The lease clause governing adjustments to the water and sewer charges is ambiguous, as reasonable minds could differ as to whether annual written notice to tenant of sewer and water payment deficiencies was required and in what form, and thus evidence as to the parties' intent in arriving at this portion of the agreement must be received in order to construe it (see Van Wagner Adv. Corp. v S & M Enters., 67 NY2d 186, 191 [1986]; Chimart Assoc. v Paul, 66 NY2d 570, 573 [1986]; Chandi v Shukla, 308 AD2d 427 [2003]). In addition, the question of whether tenant's $300 per month payments were credited to arrive at the water and sewer amount cannot be determined at this stage of the proceedings.
Decision Date: September 29, 2004