Pantote Big Alpha Foods, Inc. v. Schefman

• Decision Date: 19 June 1986
• Citation: 503 N.Y.S.2d 58,121 A.D.2d 295
• Parties: PANTOTE BIG ALPHA FOODS, INC., Plaintiff-Respondent, v. Robert SCHEFMAN, et al., Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 58

503 N.Y.S.2d 58

121 A.D.2d 295

PANTOTE BIG ALPHA FOODS, INC., Plaintiff-Respondent, v. Robert SCHEFMAN, et al., Defendants-Appellants.

Supreme Court, Appellate Division,

First Department.

June 19, 1986.

A. Gelbwaks, New York City, for plaintiff-respondent.

V.P. Hanley, Jr., New York City, for defendants-appellants.

Before SULLIVAN, J.P., and ASCH, FEIN, KASSAL and ELLERIN, JJ.

MEMORANDUM DECISION.

Order and judgment (one paper), Supreme Court, New York County (Burton S. Sherman, J.), entered July 9, 1985, which granted plaintiff's motion for summary judgment and declared that defendant Robert Schefman (Schefman), as net lessee breached the net lease agreement executed with plaintiff by using the premises for residential purposes and by allowing subtenants, the other defendants, to occupy the premises for residential purposes, unanimously reversed on the law, summary judgment is denied and the action is remanded for a trial, with costs.

The lease between plaintiff and Schefman provides that the premises shall be used "for any commercial purpose for which the building is legally suitable and for no other purpose". It is undisputed that Schefman and the subtenants are currently living and working in the premises as artists. Schefman alleges that the landlord's agent, who negotiated the net lease with Schefman at the time the lease was executed, agreed that the premises could be used for artists in residence. The premises are located in Tribeca, an area in which commercial buildings are occupied by artists in residence who both live and work in their rented quarters. Schefman allegedly expended substantial sums of money to make possible such occupancy and use. He then sublet portions of the premises to other artists who occupy the building as joint living and working quarters, as does Schefman.

Following examinations of defendants before trial, and prior to the scheduled examination of plaintiff's attorney, Leo Sussman, who allegedly negotiated the lease, plaintiff moved for summary judgment. This motion precluded his examination before trial. There is a question of fact as to the meaning of the lease term respecting use of the building "for any commercial purpose for which the building is legally suitable" in the context of Schefman's use of the premises as an artist in residence. Schefman's affidavit concerning Sussman's oral representations prior to the execution of the lease, and his alleged knowledge of Schefman's occupation as an...