Austrian Lance & Stewart, P.C. v. Rockefeller Center, Inc.

• Citation: 558 N.Y.S.2d 521,163 A.D.2d 125
• Court: New York Supreme Court Appellate Division
• Decision Date: 10 July 1990
• Parties: AUSTRIAN LANCE & STEWART, P.C., Plaintiff-Appellant, v. ROCKEFELLER CENTER, INC., et al., Defendants-Respondents.

Page 521

558 N.Y.S.2d 521

163 A.D.2d 125

AUSTRIAN LANCE & STEWART, P.C., Plaintiff-Appellant, v. ROCKEFELLER CENTER, INC., et al., Defendants-Respondents.

Supreme Court, Appellate Division First Department.

July 10, 1990.

V.J. Syracuse, New York City, for plaintiff-appellant.

H.J. Bergman, J.J. Ellis, New York City, for defendants-respondents.

Before KUPFERMAN, J.P., and SULLIVAN, MILONAS, ASCH and SMITH, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Beverly Cohen, J.), entered November 28, 1989, inter alia, denying plaintiff's motion for an order preliminarily enjoining defendants from serving a notice of lease termination and tolling the time period of a Notice of Default (pursuant to First National Stores, Inc. v. Yellowstone Shopping Center, Inc., 21 N.Y.2d 630, 290 N.Y.S.2d 721, 237 N.E.2d 868), and granting the cross-motion to dismiss the action against Rockefeller Center, Inc., unanimously modified on the law, the facts and in the exercise of discretion to the extent of granting plaintiff's motion for a preliminary injunction, reinstating the complaint and otherwise affirmed, and the matter remanded for further proceedings, without costs.

Plaintiff Austrian Lance & Stewart, P.C. ("Austrian Lance") is a commercial tenant of the RCA building at 30 Rockefeller Plaza, New York County under a fourteen-year lease agreement expiring in September 1994. Defendant Rockefeller Center Properties ("RCP") is the assignee of the lease from the original lessor Rockefeller Center, Inc. ("RCI"). In April 1984 RCI changed its name to Rockefeller Group, Inc. ("RGI"). In 1984 a fourth entity, incorporated in 1984, then assumed the name Rockefeller Center, Inc. The current RCI, as does RCP, maintains 1230 Sixth Avenue, New York City as its address for service of process. In February 1988 the premises were subleased by Austrian Lance to Donovan Leisure Newton & Irvine.

On August 16, 1989, RCP served plaintiff with a Notice of Default alleging non-compliance under the lease with the compartmentalization requirements of section 27-339 of the Administrative Code of the City of New York, also known as Local Law No. 5 (Local Laws, 1973, No. 5 City of New York), and giving plaintiff five days to cure the default. Local Law No. 5 requires the subdivision of large office spaces by erecting fire proof walls as barriers to the spread of fire. RCP maintains that this provision of Local Law No. 5 became applicable to the premises in February 1988.

Plaintiff at 5:15 p.m. on August 21, 1989 obtained an Order to Show Cause, staying the cure period, and providing that service on RCI be made by one o'clock in the afternoon of the following day. Both the Order to Show Cause and Summons with Notice named only RCI as a defendant. The Amended Summons with Notice, prepared by plaintiff's counsel during the evening of August 21, 1989, and the complaint dated September 20, 1989 name both RCI and RCP as defendants.

On August 22, 1989 at 10:30 a.m. Jodi Sokol, an attorney employed by plaintiff's counsel, was dispatched to the joint offices of RCP and RGI, located at 1230 Sixth Avenue, to effectuate service. She was kept at bay for several hours by receptionists who stated that Kenneth Perko, an officer and in-house counsel to RGI and general partner of RCP, was the only person authorized to accept service for defendants and that he was not in. One receptionist supported her statement to Sokol that a receptionist was not a proper person to accept service by reading from a copy of a recent court decision to this effect. The decision was conveniently stored under her desk blotter. Sokol's request for the names of other officers, directors or managers of RCI and RCP went unheeded. Before leaving at 1:00 p.m., Sokol, nevertheless, left copies of the Order to Show Cause, Summons with Notice and Amended Summons with Notice with a receptionist. On August 22, at 12:07 p.m. another attorney for plaintiff transmitted copies of such papers via telecopier to Perko at the offices of RCI and RCP. Copies were also served on Bachner Talley Polevoy Misher & Brinberg who plaintiff was advised would represent defendants in this matter.

On August 23, at 8:55 a.m. Perko appeared at the offices of plaintiff's counsel and served notice that the lease would be terminated within three days for failure to cure the default. Perko further indicated that he was there "to accept service" and was given a copy of the Order to Show Cause and stay.

On August 24, plaintiff obtained a Supplemental Order to Show Cause naming both RCI and RCP, continuing the stay and providing for service by 5 o'clock in the afternoon of that day upon the defendants' receptionist and by mailing. Defendants do not dispute proper service of the Supplemental Order to Show Cause.

Because we find that the service of the initial order was adequate and the period of time to cure was tolled, we reverse the IAS court to the extent that it denied to plaintiff a preliminary injunction and dismissed the action.

It is clear that once a lease has been terminated in accordance with its terms, a court is without power to revive the lease. First National Stores, Inc. v. Yellowstone Shopping Center, Inc., 21 N.Y.2d 630, 637, 290 N.Y.S.2d 721, 237 N.E.2d 868 (1968); Asherson v. Schuman, 106 A.D.2d 340, 341, 483 N.Y.S.2d 253 (1st Dept.1984). Hence, plaintiff was required to obtain injunctive relief prior to expiration of the cure period and before service of notice of termination. S.E. Nichols, Inc. v. American Shopping Centers, Inc., 115 A.D.2d 856, 857-858, 495 N.Y.S.2d 810 (3rd Dept.1985).

It is also true that a court may only enjoin parties to an action and that an injunction may not issue against the whole world, but will bind only the parties, those abetting them or those legally identified with them. State University of New York v. Denton, 35 A.D.2d 176, 178-179, 316 N.Y.S.2d 297 (4th Dept.1970). Nonetheless, a defect in naming or in describing a party may be cured when the papers have given notice of the party intended and no one is misled or prejudiced by the error. Matter of Iannelli v. Leventhal, 79 A.D.2d 562, 563, 433 N.Y.S.2d 795 (1st Dept.1980); Gajdos v. Haughton Elevator, Division of Reliance Electric Co., 131 A.D.2d 428, 516 N.Y.S.2d 80 (2nd Dept.1987); see also Matter of McCormick v. Axelrod, 59 N.Y.2d 574, 583, 466 N.Y.S.2d 279, 453 N.E.2d 508 (1983), order amended, 60 N.Y.2d 652, 467 N.Y.S.2d 571, 454 N.E.2d 1314 (1983) (respondents held in contempt although not served with order as they were deemed to have had sufficient knowledge, actual or imputed, of terms of the stay). Here, no confusion has resulted from naming RCI, believed to be the prior landlord, in the order to show cause. It was clear that the relief sought was against the current landlord since a copy of the lease agreement and Notice of Default received from the present landlord were attached to the papers. Moreover, RCP and RCI maintain the same agent for service of process. The defendant RCI clearly is an improper party since it was not incorporated until after the previous corporation of the same name had assigned the lease to RCP and itself had changed names. Plaintiffs allege that the present RCI has no employees and that its adoption of the name of the prior owner of the RCA building has created confusion as to the identity of the legal entity which currently owns the building [see Roggenburg v. Rockefeller Center, Inc., 158 A.D.2d 332, 551 N.Y.S.2d 825 (1st Dept. 1990) ]. The error in naming RCI was a curable irregularity, having no effect on the injunction's validity.

Secondly, under the facts herein, service upon the receptionist was sufficient. A receptionist generally is not a person authorized to receive service for a corporate defendant. CPLR 311; Colbert v. International Security Bureau, Inc., 79 A.D.2d 448, 437 N.Y.S.2d 360 (2nd Dept.1981) lv. app. den., 53 N.Y.2d 608, 442 N.Y.S.2d 1025, 425 N.E.2d 899 (1981)....