41st St. Bldg. Corp. v. Rothenberg

• Decision Date: 22 April 1958
• Citation: 12 Misc.2d 111,173 N.Y.S.2d 913
• Parties: 41ST. STREET BUILDING CORPORATION, Landlord, v. George ROTHENBERG and Jacob I. Polstein, tenants, Abraham L. Hyman, Harry M. Justiz and Herbert M. Fern, Undertenants.
• Court: New York City Municipal Court

Page 913

173 N.Y.S.2d 913

12 Misc.2d 111

41ST. STREET BUILDING CORPORATION, Landlord, v. George ROTHENBERG and Jacob I. Polstein, tenants, Abraham L.

Hyman, Harry M. Justiz and Herbert M. Fern, Undertenants.

Municipal Court of City of New York, Borough of Manhattan,

Third District.

April 22, 1958.

Finkelstein, Benton & Soll, New York City, by Seymour Hozore, New York City, of counsel, for landlord.

Jacob I. Polstein, Bayside, pro se.

George Rothenberg, New York City, pro se and for Hyman and Justiz.

Herbert M. Fern, New York City, pro se.

GEORGE STARKE, Justice.

The landlord's claim of subletting without its consent is the basis for this holdover proceeding.

The facts have been stipulated. In 1943 the landlord leased a five-room law suite at 570 Seventh Avenue, New York City, to Rothenberg, Polstein & Lippman, for a term expiring in 1948. The lease forbade subletting without the landlord's consent. However, as is so customary, particularly among attorneys, the tenants immediately sublet various portions of their suite. Not only did the landlord recognize the prevailing custom and acquiesced, but listed the names of the subtenants on the lobby directory and on the tenants' entrance floor. From 1943 to 1948, subtenants went and others came, and with each change in subtenants, a corresponding change was made on the directory and entrance door. At no time was any objection voiced. In 1948, Rothenberg alone executed a lease to expire in 1951, which provided that it was subject to Polstein's rights as a statutory tenant. No delineation was made as to Polstein's space. Simultaneously with the execution of this lease, the landlord, by a separate instrument, agreed in writing (addressed to Rothenberg and Polstein) that 'you are hereby permitted to sublet a portion of the said premises to your present subtenants or to any replacements of them.' Again, from 1948 to 1951, there were changes in subtenants reflected by changes in listing on the directory and entrance door. Since 1951, Rothenberg continued in possession as a statutory tenant. From 1951 to December 1957, subtenants again came and went and the lobby directory and door showed each change. In December 1957, one of the subtenants moved and Rothenberg sought to replace him. However, the landlord refused to list on the directory the name of the proposed subtenant. In February 1958, Rothenberg subject to Fern that portion of the space formerly, occupied by the previous subtenant, Feldberg. The landlord refused to list Fern's name (the replacement) and commenced this proceeding against Polstein as well as Rothenberg, claiming this subletting to Fern to be a breach of a substantial obligation of tenancy.

This proceeding might well be disposed of on the basis of a waiver in effect since 1943, and the acceptance of rent for many years with knowledge of the custom and continuous sublettings. Woollard v. Schaffer Stores Co., 272 N.Y. 304, 5 N.E.2d 829, 109 A.L.R. 1262; Werber v. Weinstein, 207 Misc. 707, 138 N.Y.S.2d 196, and cf. Ornstein v. 1440 Associates, Inc., Sup., 173 N.Y.S.2d 910.

However, the landlord contends that the basic issue here is whether the right to sublet is projected into a statutory tenancy, and reliance that it is not, is placed on Leventhal v. 128 West 30th Street Corp., Sup., 158 N.Y.S.2d 398; Bisbano v. 42-20 Restaurant Corp., 280 App.Div. 790, 113 N.Y.S.2d 215, and a case decided by this court--Fifth Avenue Realty Corp. v. Lynch, Mun.Ct., 166 N.Y.S.2d 687.

In the Leventhal case, there was no waiver, no history of sublettings and, in fact, no right to sublet without the landlord's consent (that could be withheld unreasonably). In Bisbano, the determinative issue was whether a statutory tenant had an assignable estate. While in the Lynch case, the right to sublet was specifically limited to the term of the lease, and then only with the landlord's consent....