Century Paramount Hotel v. Rock Land Corp.
| Decision Date | 03 November 1971 |
| Citation | 327 N.Y.S.2d 695,68 Misc.2d 603 |
| Parties | CENTURY PARAMOUNT HOTEL, Petitioner-Landlord, v. ROCK LAND CORP., and Irving Maidman, Respondent-Tenants and Irving Maidman et al., Respondents-Undertenants. ROCK LAND CORP., Petitioner, v. GRIFFITH ENTERPRISES, INC., Respondent. ROCK LAND CORP., Petitioner, v. Leroy GRIFFITH, Respondent. . 52 |
| Court | New York City Court |
McLaughlin, Stern, Ballen & Miller by Stephen S. Bernstein, New York City, for Century Paramount Hotel.
Lans, Feinberg & Cohen by David S. Ward, New York City, for Rock Land Corp. and Maidman.
Seymour Detsky, New York City, for Leroy Griffith and Griffith Enterprises, Inc.
At the trial of these three holdover proceedings, the landlord-owner (Century Paramount, successor of Paramount West Corp.) seeks to recover possession of its theater from its tenant (Rock-Land) and its undertenant, Griffith; while the tenant, Rock Land, successor corporation of Maidman Playhouses, Inc. seeks to recover possession from its subtenants Griffith Enterprises, Inc. and Leroy Griffith who currently occupy the theater.
On December 28, 1960, Paramount West Corp. executed a ten year lease with Maidman Playhouses, Inc. for the rental of that part of the Hotel Paramount known as the 'Diamond Horseshoe.' The lease provides that 'Tenant shall use and occupy demised premises for a theater, of a high class legitimate type, off Broadway productions, motion pictures, fashion shows, business meetings, television studios and television productions and for no other purpose.' At its termination the lease was renewed for another ten year period.
On November 14, 1969, the landlord and tenant agreed in writing that the tenant would not rent the premises after April 25, 1970 for 'a Burlesque Theater or for the exhibition of 'adult or sex exploitation films.' At that time there was a sub-tenant in the theater which the landlord considered undesirable because it was showing Burlesque and the tenant agreed not to renew its lease.
Sometime in early 1970, Maidman assigned its lease to Eddie Bracken Ventures, Inc., with the landlord's consent. During the time that Eddie Bracken Ventures had the lease, it negotiated an agreement with Leroy Griffith which purports to be a licensing agreement rather than a lease. When Griffith failed to sign the agreement, the president of Eddie Bracken Ventures, on July 28, 1971 wrote 'Inasmuch as four weeks have elapsed and you have not sent me back the lease agreement for the Stairway Theater, I hereby notify you that we have no agreement.'
Shortly thereafter, Bracken defaulted in its payments to Maidman pursuant to its conditional lease agreement and on August 1, 1971 the lease was reassigned to Rock Land Corp. (formerly Maidman Playhouses, Inc.).
Sometime in late July or early August, Leroy Griffith entered into possession of the premises and began to prepare the theater for the showing of Burlesque which he has been showing ever since. Griffith claims, and it is unrefuted, to have paid Eddie Bracken $20,000, representing its payment obligation for the first two months and the last two months of the agreement.
On August 13, 1971 the landlord wrote a letter to its tenant, Rock Land stating that the theater was about to be reopened as a Burlesque theater in violation of the lease and asked Rock Land to take steps to discontinue this practice. Thereafter, on August 18, 1971 the landlord sent the tenant a five day notice to cure its default, invoking paragraph 17, the acceleration clause of the lease. On the same day that Rock Land received that letter, it sent a five day notice to Leroy Griffith demanding that he discontinue using the premises as a Burlesque theater. At the same time Rock Land notified the landlord that it would 'be happy to join with (the landlord) in any attempt to put the present occupant of the premises out of possession.' On August 24, 1971, the landlord sent Rock Land a letter giving it three days notice of the termination of the lease. Rock Land, on August 26, 1971, give Leroy Griffith a three day 'notice of termination and cancellation of your occupancy.'
When Griffith continued in possession, the landlord commenced a holdover proceeding against Rock Land (the tenant) and Griffith (the under-tenant) serving the parties on September 2, 1971. On September 3, 1971, Rock Land instituted a summary proceeding against Griffith Enterprises and on September 16, 1971 it instituted a summary proceeding against Leroy Griffith.
The first issue that must be resolved is the nature of Griffith's occupancy for that would determine the necessary due process to remove him from possession. He is not a squatter, having entered the premises under color of title after payment of a consideration of $20,000 to Bracken. Century-Paramount argues that Griffith is a mere licensee because the unsigned agreement speaks in the language of a license and never even uses such terms as landlord, tenant or rent. However the nature of the document can be gleaned from its substance rather than its form. There is a monthly payment reserved for use of the premises, Griffith occupied the premises and Bracken in cancelling the agreement called it a 'lease agreement.' In paragraph 7 it was agreed that if Bracken defaulted in the payment of rent to its landlord, Griffith would make such payment and deduct that amount from its monthly fee to Bracken. Had the agreement been executed it would have constituted a lease since Griffith would have had exclusive possession of the theater and there was a reservation of rent although it was not so called (Meers v. Munsch-Protzmann Co., Inc., 217 App.Div. 541, 217 N.Y.S. 256). Although the agreement was never executed, Bracken was paid a valuable consideration for Griffith's right to enter into possession of the theater. Since Griffith entered into possession of the premises under an unexecuted lease, Griffith was a tenant at will of the prime lessee (See Rasch, Landlord and Tenant; Secs. 1031, 1932) entitled under ordinary circumstances to thirty days notice of termination pursuant...
To continue reading
Request your trial
-
In re Roswick
...(Booth House) v. Sarris, 154, Misc.2d 798, 802, 588 N.Y.S.2d 748, 751 (N.Y.Civ.Ct. 1992); Century Paramount Hotel v. Rock Land Corp., 68 Misc.2d 603, 608, 327 N.Y.S.2d 695, 701 (N.Y.Civ.Ct.1971); Margolies v. Lawrence, 67 Misc.2d 468, 469-70, 324 N.Y.S.2d 418, 420 (N.Y.Civ.Ct.1971); But see......
-
Kazarinov v. L. B. Kaye Associates
...contract or privity of estate with the landlord (Stewart v. Long Island R.R. Co., 102 N.Y. 601, 8 N.E. 200 Century Paramount Hotel v. Rock Land Corp., 68 Misc.2d 603, 327 N.Y.S.2d 695 ) and thus is not liable to the landlord for performance of any of the covenants of the major lease (Tefft ......
-
Berkey v. Downing
... ... reported that it estimated the value of the land to be One Hundred Twenty-two Thousand One Hundred ... As was said in Gusdore Corp. v. Michaels, 13 Misc.2d 762, 764, 180 N.Y.S.2d ... ...
-
Katz Park Ave. Corp. v. Olden
...pleading proper service of a proper predicate notice, can be commenced in the same court. See, Century Paramount Hotel v. Rock Land Corp., et al., 68 Misc.2d 603, 327 N.Y.S.2d 695 (failure to adequately set forth circumstances of serving, and substance of, holdover notice). If the court gen......