Howard Stores Corp. v. Robison Rayon Co.

• Decision Date: 27 January 1970
• Citation: 307 N.Y.S.2d 491,61 Misc.2d 939
• Parties: HOWARD STORES CORPORATION v. ROBISON RAYON CO., Inc.
• Court: New York City Court

Page 491

307 N.Y.S.2d 491

61 Misc.2d 939

HOWARD STORES CORPORATION v. ROBISON RAYON CO., Inc.

Civil Court of the City of New York, New York County.

Jan. 27, 1970.

Arthur A. Singer, New York City, for plaintiff.

Cleary, Gottlieb, Steen & Hamilton, New York City, for defendant.

RICHARD W. WALLACH, Judge.

This action for rent, in which both parties move for summary judgment, requires determination of the residual rights and liabilities of a tenant after assignment of its lease.

Defendant, the erstwhile tenant of commercial space in New York City, executed assignments with plaintiff's consent of two written leases with plaintiff to the third party assignees on Dec. 1, 1967. The balance of the lease term assigned in both instances expires on May 31, 1970. The assignments were absolute and unconditional in form, and reserved no right in defendant-assignor to cure any default of the assignees, or to recover possession of the leased premises following any default or abandonment by the assignees.

After assigning their assets for the benefit of creditors in May, 1969, the two assignees defaulted in the payment of rent, and landlord commenced summary non-payment proceedings which resulted in a final order awarding possession of the premises to plaintiff. The defendant assignor was not a necessary party to those proceedings, 220--228 Brook Ave. Corp. v. Zaft, 151 Misc. 231, 271 N.Y.S. 133, and was stipulated out of them. In the court's view it is immaterial here whether the assignees abandoned the premises before execution of the warrant, and whether the premises were briefly utilized by a creditor of the assignees during the month of June, 1969, since it is undisputed that payment for use and occupancy for that month was paid. In July 1969, defendant paid a sum equal to the monthly rent reserved to plaintiff, for which it was liable both under the express terms of the assignment and by operation of law. Gilette Bros. v. Aristocrat Restaurant, 239 N.Y. 87, 145 N.E. 748; Verschleiser v. Newman, 76 Misc. 544, 135 N.Y.S. 671; South Bay Center Inc. v. Butler, Herrick & Marshall, 43 Misc.2d 269, 250 N.Y.S.2d 863. After the assignment the assignor remained liable for performance of all affirmative covenants required to be performed by tenant under the leases. 209--13 West 48th Realty Corp. v. Rose Offset Printing Corp., 74 N.Y.S.2d 216, aff'd. 273 App.Div. 754, 75 N.Y.S.2d 774.

Defendant resists this action for collection of the August 1969 rent on the ground that it demanded re-entry and restoration to possession of the premises in the preceding month, a demand which landlord rejected. Defendant argues that such refusal constitutes a breach of the leases which relieves it of its rental obligation.

The court disagrees. Only a release or surrender of the lease could accomplish this result, see 1 Rasch, Landlord & Tenant, etc., 1950, ed., Sec. 53, p. 41, and no proof has been submitted to raise such a factual issue. Delivery of keys to the premises by the assignees or anyone else on their behalf to landlord, even if established, cannot be escalated into proof of surrender, in view of paragraph 24 of the standard real estate board form of loft lease, executed by the parties hereto, which provides that such an act 'shall not operate as a termination of the...