Otiniano v. Magier
| Decision Date | 05 March 1992 |
| Citation | 580 N.Y.S.2d 759,181 A.D.2d 438 |
| Court | New York Supreme Court — Appellate Division |
| Parties | Maximilian OTINIANO, Plaintiff-Respondent-Appellant, v. David MAGIER, Harlington Realty Corp., High Street Equities Corp., Niles C. Welikson, d/b/a Horing & Welikson, Defendants-Appellants-Respondents. |
Before SULLIVAN, J.P., and MILONAS, ELLERIN, KASSAL and SMITH, JJ.
Order, Supreme Court, New York County (Carol E. Huff, J.), entered December 21, 1990, which, inter alia, denied defendants' cross-motion for summary judgment, is unanimously reversed on the law to the extent that defendants' cross-motion for summary judgment is granted and the complaint is dismissed, without costs.
Plaintiff's action grows out of the following alleged facts. By a lease agreement dated August 6, 1979, defendant Harlington Realty Corp. (Harlington) leased the premises, a corner store in Kew Gardens, Queens, New York City, to George Nembach for a period of ten years from August 1, 1979 through July 31, 1989. On August 27, 1981, defendant High Street Equity Corp. (High Street) became the owner of the building in which the store was located and Harlington became the managing agent of the building. Defendant David Magier (Magier) owned both Harlington and High Street and was an officer in both.
In the first cause of action plaintiff alleges, inter alia, that in 1986 he was fraudulently induced to purchase the store and agree to an assignment of the lease by the representations of defendants Magier and Harlington that the lease agreement would be extended for five years. Subsequently, after the purchase, the said defendants not only refused to extend the lease but demanded that the lease be terminated and a new one negotiated.
The first cause of action is without merit since it is barred by the Statute of Frauds. General Obligations Law § 5-703(2) provides that a lease agreement for longer than one year must be in writing. Therefore, an oral lease agreement for five years is unenforceable. Geraci v. Jenrette, 41 N.Y.2d 660, 394 N.Y.S.2d 853, 363 N.E.2d 559 (1977).
In his second cause of action, plaintiff alleges a breach of the covenant of quiet enjoyment. However, since plaintiff remained on the premises and operated his business until the end of the term, there was no breach of the covenant of quiet enjoyment. Dave Herstein Co., Inc. v. Columbia Pictures Corp., 4 N.Y.2d 117, 172 N.Y.S.2d 808, 149 N.E.2d 328 (1958).
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