Nipet Realty, Inc. v. Melvin's Restaurant & Bar, Inc.
| Decision Date | 03 June 1971 |
| Citation | 67 Misc.2d 790,327 N.Y.S.2d 2 |
| Parties | NIPET REALTY, INC., Petitioner/Landlord, v. MELVIN'S REST. & BAR, INC., Respondent/Tenant. |
| Court | New York City Court |
Roberts & Chu, New York City, for petitioner.
Marc Hermelin, New York City, for respondent.
In this holdover proceeding, the petitioner, Nipet Realty, Inc. seeks to evict the respondent Melvin's Restaurant & Bar, Inc. claiming that the respondent 'heretofore assigned said lease to the GERARD MONAHAN CORP. which party assignee surrendered the lease by agreement with the landlord, wherefore respondent has no standing with respect to the premises.'
The petitioner and the respondent entered into a leasehold agreement in August of 1966 whereby the petitioner leased to the respondent a store located at 1702 Second Avenue, New York City, to be occupied by a bar and restaurant, to commence November 1, 1966 and to end October 30, 1976 at $500 per month for the first three years, $550 per month for the fourth year, $575 per month for the fifth year, and $650 for the next five years. The lease contained a provision that 'the tenant may assign this lease only by written consent of landlord which such consent the landlord shall not unreasonably withhold.'
It appears that sometime after the inception of the leasehold term, the respondent sold the bar and restaurant to one Mack Cohn and the 1702 Second Avenue Corp., and also assigned the leasehold estate to them. The terms of that sale and assignment were not adduced at the trial, except that the landlord consented to the assignment in writing and collected rent from the 1702 Second Ave. Corp. What happened thereafter is not clear, but sometime later the respondent was in a position to again sell the bar and restaurant and to assign the leasehold, this time, to the Gerard Monahan Corp., on March 3, 1969.
The respondent took back a chattel mortgage on the fixtures and personalty contained in the restaurant and bar, and at the same time the Gerard Monahan Corp. re-assigned the leasehold back to the respondent as further security for the payment for the bar and restaurant. The assignment and re-assignment were offered into evidence by the petitioner who obtained them from the Monahan Corp.
Thereafter, the petitioner accepted the Gerard Monahan Corp. as its 'tenant' and dealt with it and collected a rental slightly in excess of the terms of the lease. No new written lease was entered into between them, although one had been prepared but not executed.
In February of 1971, the Gerard Monahan Corp. defaulted on its obligations and the respondent apparently foreclosed on the bar and restaurant, entered the premises and then tendered rent to the petitioner in the amount of $650, which was rejected.
Petitioner's position in its memorandum is contrary to its allegation in the petition. Petitioner now urges that no valid assignment took place between the respondent and the Gerard Monahan Corp. in that by bypassing the strict terms of the lease requiring the landlord's written consent, it terminated both the privity of contract and the privity of estate, that existed before the alleged 'assignment.' With this, the Court cannot agree.
An assignment in violation of a restriction in the lease is not void. It is voidable and passes an estate subject to the consequences of the breach. Therefore, unless the landlord chooses to void the assignment, the assignment is valid, privity of estate results, and the assignee is liable thereunder. (S. Liebmann's Sons Brewing Co. v. Lauter, 73 App.Div. 183, 76 N.Y.S. 748.)
Furthermore, the written consent to the first assignment obviated the necessity for consent to further assignments by the 1702 Second Avenue Corp. or any other assignee (Lynch v. Joseph, 228 App.Div. 367, 240 N.Y.S. 176).
In any event, the allegation of the petition is controlling on the theory of the petitioner's case. By so alleging, the petitioner showed its knowledge of the terms of the prior assignment to the 1702 Second Avenue Corp. That original assignment standing alone would have terminated the estate of the respondent. (Howard Stores Corporation v. Robinson Rayon Co., Inc., 64 Misc.2d 913, 315 N.Y.S.2d 720, affirmed 36 A.D.2d 911, 320 N.Y.S.2d 861.)
Apparently there was more to that assignment, for petitioner alleges...
To continue reading
Request your trial
-
Anthony L. Petters Diner, Inc. v. Stellakis
...to the mortgaged property, defeasible by payment of the indebtedness it is given to secure." See Nipet Realty Inc. v. Melvin's Rest. & Bar, Inc., 67 Misc.2d 790, 327 N.Y.S.2d 2, 6 (Civ.Ct.1971). A lessee may legally give a mortgage on his leasehold interest. Hutchinson v. Bramhall, 42 N.J.E......
-
Olin v. Goehler
...588, 594, 255 P. 936 (1927). 4 See also, Coulos v. Desimone, 34 Wash.2d 87, 208 P.2d 105 (1949); Nipet Realty, Inc. v. Melvin's Rest. & Bar, Inc., 67 Misc.2d 790, 327 N.Y.Supp.2d 2 (1971). The rationale for implying a right of re-entry in such a situation is It seems unreasonable ... to say......
-
In re Lefrak
...that an assignment by a lessee is not void, but simply voidable by the lessor. See, e.g., Nipet Realty, Inc. v. Melvin's Rest. & Bar, Inc., 67 Misc.2d 790, 327 N.Y.S.2d 2 (N.Y.Civ.Ct. 1971). These cases are inapposite not only because cooperative apartment ownership is sui generis, but also......
-
In re American Appliance
...Stark v. National Research & Design Corp., 33 N.J.Super. 315, 110 A.2d 143 (App.Div.1954); Nipet Realty, Inc. v. Melvin's Restaurant & Bar, Inc., 67 Misc.2d 790, 327 N.Y.S.2d 2 (Civ.Ct.1971).6 However, contrary authority exists for the proposition that a Chapter 11 debtor may avoid a leaseh......