concur in part and dissent in part in a separate memorandum by McGuire, J., as follows: I disagree with the majority in one respect, namely, its conclusion that plaintiffs’ abatement should include their contribution to the cooperative’s tax and mortgage obligations. Paragraph 4 (b) of the proprietary lease does not purport to address this specific issue. Rather, it provides for a “proportional] abate[ment]” of rent if, among other things, damage to the apartment is so extensive as to render it “partly or wholly untenantable.” To be sure, it is possible to read paragraph 4 (b) to provide for a 100% abatement when the apartment has been rendered wholly untenantable. But that reading certainly is not compelled by the language of paragraph 4 (b).
In my view, the more sensible reading of the lease and paragraph 4 (b) is that plaintiffs should not be relieved of their obligation to pay that portion of the maintenance that reflects taxes, mortgage costs and other incidents of ownership. If plaintiffs ultimately prevail in this action and are awarded damages for all costs they incurred in securing alternative housing and the apartment is restored to its prior condition, plaintiffs of course will continue to own the shares relating to the apartment. Thus, to relieve plaintiffs of any obligation to pay taxes, mortgage costs and other incidents of ownership would confer a *273windfall on them and inflict an unjustified penalty on all other shareholders, including shareholders who are utterly innocent of any wrongdoing relating to the “untenantable” condition of plaintiffs’ apartment. Under the majority’s interpretation of paragraph 4 (b), all shareholders would pay not only their own share of their incidents of ownership but would subsidize on a pro rata basis plaintiffs’ share.
I believe the majority’s interpretation of paragraph 4 (b) is at odds with the principle of construction requiring a court to give the “construction most equitable to both parties instead of the construction which will give one of them an unfair and unreasonable advantage over the other” (Metropolitan Life Ins. Co. v Noble Lowndes Intl., 84 NY2d 430, 438 [1994] [internal quotation marks omitted]). [See 2007 NY Slip Op 32868(U).]