I dissent and vote to affirm the order granting summary judgment in the tenant’s favor. The majority has engaged in a useless and general discussion of "stop-tax” clauses and speculated on possibilities of economic hardship to the landlord which have no basis in the record. There is no need to respond to such as it is in no way dispositive of the issue here. We are concerned solely with whether the language of the lease renewal agreement with respect to the escalation clause is unambiguous or not. I do not see how it could be more specific or clearer.
The record indicates that defendant tenant entered into the original lease on the premises with plaintiffs assignor on January 11, 1955. That lease provided inter alia for an initial term of seven and one-half years at a monthly rental of $1,722.50 and at the tenant’s option for a subsequent seven and one-half year renewal at a monthly rental of $1,522.50. In addition, the lease agreement specified that the "Lessor will pay any and all taxes assessed or imposed upon the said demised property except such taxes as may be assessed or levied against the property by reason of the Lessee’s use and occupancy.” There is no indication in the record, however, that any taxes relating to the tenant’s use and occupancy were ever imposed during either the initial or renewal term of this lease.
Thereafter on January 14, 1965, before the expiration of the renewal term of the original lease and at a time when plaintiff’s assignor was receiving under the terms of that lease rent *272of $1,522.50 per month, defendant and plaintiffs assignor entered into a new lease renewal agreement which superseded the terms of the original agreement. This new agreement provided for an initial renewal term of 8 years and 11 months at the increased rental of $1,627.50 per month and for three optional five-year renewal terms at a monthly rental of $1,677.50. Furthermore, it contained the tax escalation clause upon which this action is based.
As noted by the majority that clause provides that in the event the real estate taxes on the demised premises "vary upward in excess of Five Per Cent (5%) of the amount of taxes levied for the full tax year 1965, then the monthly rental herein reserved for any month falling within such tax year shall be increased by one-twelfth of the. amount of such excess.” The clause, however, goes on to provide "that in no event shall the rental 1.ixed under this clause vary from the rental under this lease by more than $1,006.50 per year.” (Emphasis supplied.)
The majority’s interpretation of this clause to the effect that the tenant is bound to pay any increase attributable to taxes over the previous year’s combined base rental and tax increment, to the extent of $1,006.50, is in my opinion totally unsupported by the clear language used by the parties.
The tax escalation clause when read in its entirety indicates that the total rent required to be paid by the tenant is essentially made up of two separate rental components, viz., the base monthly rental as provided by the preceding terms of the lease renewal and the increment attributable to taxes. There can be no doubt that the term "rental fixed under this clause” clearly refers to combined base rental and one twelfth of the tenant’s total liability for tax increases. Similarly, the term "rental under this lease” can only refer to that rental which is provided by the express terms of the lease, i.e., $1,627.50 per month during the initial renewal term and $1,677.50 per month during the optional renewal term. An integrated reading of the clause leads to the inevitable conclusion that the tenant is only liable to pay the increases due to taxes to the extent such increases do not exceed $1,006.50 over the base rental for the property. Thus in any given year the base rental is determined without reference to any preceding year’s increment due to taxes. Accordingly, in no event may the tenant’s obligation in any one year exceed the base rental *273(either $1,627.50 or $1,677.50 per month plus $83.88 (i.e., one twelfth of $1,006.50).
The majority attempts to justify its conclusion upon several different grounds including the general purpose of such "stop-tax” clauses, the possible economic ramifications upon the plaintiff in the event it is unsuccessful in this suit and the intent of the parties with respect to tax increases as evidenced by the terms of the original 1955 lease agreement. However, as the majority has recognized, it "is well settled that a court may not, under the guise of interpretation, make a new contract for the parties or change the words of a written contract so as to make it express the real intention of the parties if to do so would contradict the clearly expressed language of the contract [citations omitted].” (Rodolitz v Neptune Paper Prods., 22 NY2d 383, 386; see, also, Laba v Carey, 29 NY2d 302, 308; West, Weir & Bartel v Carter Paint Co., 25 NY2d 535.) Thus, while one may assume that the parties intended to effect the general purposes of such a clause or that they did not intend the economic ramifications upon plaintiff envisioned by the majority, such considertions are, absent ambiguous language, irrelevant to our analysis and where, as here, the language is clear and unambiguous, the parties are bound by that language.
Nor can the majority, in my opinion, find support for their argument in the language of the original 1955 agreement which provided that the tenant would pay all expenses including taxes occasioned by its use and occupancy of the premises. In the first place, there is no indication in the record that the tax increments sought to be recovered by plaintiff or any part thereof were occasioned solely by virtue of the tenant’s use and occupancy. On the other hand, in the event a portion of these taxes was due to the tenant’s use and occupancy, plaintiff’s assumption of at least the first 5% of such tax increase, pursuant to the terms of the escalation clause, effectively altered the afore-mentioned terms of the original agreement and to the extent that it has so altered it, its applicability to the instant situation is suspect.
The majority’s reliance, in construing the terms of the escalation clause against the tenant’s interest, upon the fact that the clause was prepared by the tenant on its own printed form is also misplaced. While admittedly the clause appeared on the tenant’s form, it was typed in and was, therefore, not a part of the original printed lease renewal form. In addition, *274the record offers no support for the conclusion that the clause was prepared solely by the tenant without reference to negotiations between the parties. In any event the rule of construction referred to by the majority only applies in situations of ambiguity and, since no ambiguity exists in the instant case, that rule is inapplicable.
Marsh, P. J., and Goldman J., concur with Cardamone, J.; Moule and Simons, JJ., dissent and vote to affirm the order, in an opinion by Moule, J.
Order reversed, with costs and plaintiffs motion for summary judgment granted.