## Facts

- Fortis Financial Services, LLC (successor to Generale Bank) was the prime tenant and sublandlord; Fimat Futures USA, Inc. was the subtenant.
- The subtenant occupied premises under a sublease that incorporated obligations from the prime lease.
- The premises required restoration, and Fortis, as prime tenant, paid the prime landlord $994,140 for restoration to pre-lease condition.
- Fortis sued Fimat seeking reimbursement, relying principally on:
  - Sublease § 4, which imposed on the subtenant all obligations of the prime tenant with respect to the subleased premises.
  - Sublease § 9, which addressed alterations/improvements and stated the subtenant must, at its sole cost, remove its improvements at expiration/termination and restore the premises to their condition prior to the making of those improvements.
- Fimat moved to dismiss under CPLR 3211(a)(1), arguing the final paragraph/sentence of § 9 limited its responsibility to removal of its improvements and negated broader restoration liability.
- The trial court granted dismissal based on documentary evidence; Fortis appealed.

## Issues

1. Whether documentary evidence on a CPLR 3211(a)(1) motion conclusively disposed of Fortis’s claim by establishing, as a matter of law, that Fimat had no contractual liability for any portion of the $994,140 restoration payment.
2. Whether the sublease, read as a whole, imposed a restoration obligation on the subtenant notwithstanding the final paragraph/sentence of § 9.

## Decision

- The Appellate Division reversed the dismissal to the extent appealed from, denied the CPLR 3211(a)(1) motion, and reinstated Fortis’s first cause of action.
- The court held the contractual language relied on by Fimat did not conclusively negate restoration liability as a matter of law.
- Reading the agreement as a whole, the sublease imposed a restoration obligation through both § 9’s express restoration language and § 4’s incorporation of the prime tenant’s obligations.

## Legal Principles

- CPLR 3211(a)(1) dismissal is proper only if documentary evidence resolves all factual issues as a matter of law and conclusively disposes of the claim.
- Contract terms must be interpreted in context and in light of the parties’ intent as shown by the agreement as a whole.
- A clause will not be read to eliminate an expressly stated contractual obligation absent clear, explicit language doing so; competing reasonable readings prevent conclusive disposition on a documentary-evidence motion.

## Conclusion

The court reinstated the restoration-cost claim because the sublease documents, viewed as a whole, imposed restoration duties on the subtenant and did not clearly limit those duties in a manner that conclusively defeated the claim under CPLR 3211(a)(1).


Fortis Fin. Servs., LLC v. Fimat Futures USA, Inc., 290 A.D.2d 383, 737 N.Y.S.2d 40 (1st Dep’t 2002)