Owego Properties v. Campfield

Decision Date30 April 1992
Citation583 N.Y.S.2d 37,182 A.D.2d 1058
PartiesIn the Matter of OWEGO PROPERTIES, Respondent, v. Dale J. CAMPFIELD, Doing Business as Shangri-La Motor Speedway, Appellant.
CourtNew York Supreme Court — Appellate Division

Hinman, Howard & Kattell (Harvey Mervis, of counsel), Binghamton, for appellant.

O'Connor, Gacioch & Pope (Alan J. Pope, of counsel), Binghamton, for respondent.

Before WEISS, P.J., and MIKOLL, LEVINE, CREW and MAHONEY, JJ.

LEVINE, Justice.

Appeal from an order of the County Court of Tioga County (Callanan, Sr., J.), entered November 13, 1991, which affirmed a judgment of the Justice Court of the Town of Tioga in favor of petitioner.

In April 1979, petitioner leased to respondent certain property owned by it in the Town of Tioga, Tioga County, for a period of 10 years with an option to renew the lease for two additional five-year terms. Under the lease agreement, the annual rental was the greater of $25,000 or 10% of the total admission ticket sales generated by respondent's operation of an automobile racetrack on the premises. Between 1979 and 1985, various disputes arose between the parties regarding the amount of gate receipts collected by respondent and, ultimately, petitioner commenced an action against respondent for back rent allegedly owed. That litigation ended in August 1987 with a settlement agreement in which respondent agreed, inter alia, to hire a public accountant to furnish a weekly "written certified statement of the total number of persons admitted to the race * * * and total cash receipts".

In December 1989, petitioner attempted to terminate respondent's lease based on his alleged failure to exercise his option to renew under the terms of the 1979 lease. Subsequently, in February 1990, respondent commenced an action seeking a declaration of the parties' rights under the lease. That litigation ended in March 1990 with a consent order providing for the continuation of both the 1979 lease and the 1987 settlement agreement for the first five-year renewal period (from April 1, 1989 to March 31, 1994) and directing respondent's strict compliance with the terms and conditions of the 1979 lease and the 1987 settlement agreement.

By letter dated May 22, 1990, David Sarkisian, an officer of Sarbro Realty Corporation who had previously been authorized by petitioner to act on its behalf with regard to the subject property, notified respondent that he was in violation of the March 1990 consent order based on his failure to provide independently certified statements of gate receipts for races held on April 28, 1990 and May 12, 1990. Although petitioner was given five days to cure the violation, he took no corrective action and, on May 31, 1990, Sarkisian sent respondent a letter terminating his lease. Petitioner permitted respondent to occupy the premises for the remainder of the racing season conditional upon his compliance with the payment, insurance and maintenance terms of the 1979 lease and the 1987 settlement agreement. Sarkisian subsequently made an unsuccessful effort to negotiate a new lease with respondent, who maintained that the original lease had not been materially breached and therefore remained in effect.

In January 1991, petitioner commenced this RPAPL article 7 proceeding seeking to evict respondent from its premises. Following a trial, Justice Court concluded that petitioner was entitled to a judgment of eviction and a warrant to dispossess was issued. Respondent then appealed to County Court which affirmed Justice Court's judgment. This appeal ensued.

Respondent's first contention on appeal is that the notice to cure was ineffective because it was signed by Sarkisian, who was neither the landlord nor an agent named in the lease, and was not physically accompanied by any authorization by petitioner designating Sarkisian as its agent. This argument is unavailing. The record amply demonstrates that respondent knew at the time he received the notice to cure that Sarkisian was authorized to act as petitioner's agent. Specifically, in direct response to an objection by respondent to a December 1989 notice of termination signed by Sarkisian, respondent was notified in writing by petitioner in January 1990 that Sarbro Realty Corporation and ...

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5 cases
  • Aviles v. Santana
    • United States
    • New York Civil Court
    • July 5, 2017
    ...the Petition that it was brought correctly in the name of the principal, Maria E. Aviles. See, e.g., Owego Properties v. Campfield (182 A.D.2d 1058, 583 N.Y.S.2d 37 [3rd Dep't 1992] ); RAC Gardens Co v. Rodriguez (1989 N.Y. Misc. LEXIS 934 [Sup Ct Kings Co 1989] ); and compare Fallarino v. ......
  • 1633 Broadway Mars Restaurant Corp. v. Paramount Group, Inc., 2007 NY Slip Op 32193(U) (N.Y. Sup. Ct. 7/18/2007), 0102995/2007.
    • United States
    • New York Supreme Court
    • July 18, 2007
    ...Corp., 127 A.D.2d 509, 510 [1st Dept. 1987], One Main v. Le K Rest. Corp., 1 A.D.3d 365, 366 [2d Dept. 2003] and Oswego Props. v. Campfield, 182 A.D.2d 1058, 1060 [3d Dept 1992]). The notice to cure must inform the tenant unequivocally and unambiguously as to how the tenant has violated the......
  • Strassberg v. Connecticut General Life Ins. Co.
    • United States
    • New York Supreme Court — Appellate Division
    • April 30, 1992
  • PS Food Corp. v. Granville Payne Retail, LLC
    • United States
    • New York Supreme Court
    • November 10, 2014
    ...Realty Holdings Co. v. Alpine Group, 225 A.D.2d 533, 534 [2d Dept 1996], lv denied 88 N.Y.2d 806 [1996] ; Matter of Owego Props. v. Campfield, 182 A.D.2d 1058, 1059 [3d Dept 1992] ). Hakim admitted, at his deposition, that he knew that Mr. Rosen was defendant's attorney since he had represe......
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