Regal Shoe Shops v. Kleinman, 77-120

• Decision Date: 11 July 1978
• Docket Number: No. 77-120,77-120
• Parties: REGAL SHOE SHOPS, a division of Wohl Shoe Company, a Missouri corporation, Appellant, v. Martin G. KLEINMAN, Appellee.
• Court: Florida District Court of Appeals

Page 765

361 So.2d 765

REGAL SHOE SHOPS, a division of Wohl Shoe Company, a Missouri corporation, Appellant, v. Martin G. KLEINMAN, Appellee.

No. 77-120.

District Court of Appeal of Florida, Third District.

July 11, 1978.

Rehearing Denied Sept. 6, 1978.

Friedman & Britton and J. Robert Olian, Miami, for appellant.

Goethel & Garcia-Vidal and Richard Karl Goethel, Coral Gables, for appellee.

Before PEARSON, HUBBART and KEHOE, JJ.

PEARSON, Judge.

The appellant, Regal Shoe Shops, was the plaintiff in the trial court. The appellee, Martin G. Kleinman, was the defendant. This appeal is from a summary final judgment for Kleinman upon Regal's action against Kleinman in Kleinman's capacity as guarantor of a lease agreement for real property in the State of New York. The lease and the guarantee of the lease, as well as the dealings between the parties subsequently mentioned, all took place in the State of New York. It is our conclusion that the construction of the lease, the guarantee and the effect of the subsequent dealings between the parties were all governed by the law of the State of New York. See Connor v. Elliott, 79 Fla. 513, 85 So. 164 (1920); and Quintana v. Ordono, 195 So.2d 577 (Fla.3d DCA 1967).

Regal entered into a written lease whereby it leased office space in New York City to a corporation known as Snelling & Snelling Lower Manhattan, East, Inc. Defendant Kleinman was the president, a director and the sole shareholder of Snelling. He executed a written guarantee whereby he guaranteed the full performance of the terms and conditions of the lease. Several modifications of the lease were made. First, the landlord consented to the subleasing of a portion of the leased premises. Second, Snelling released its rights to the blockage of a display window in a subway arcade entrance. Third, Regal agreed to accept a lump sum arrearages payment and to extend the monthly payment to thirty days, to change the rental due date from the first of the month to the tenth and to allow Snelling the right to sublet the premises. All of these modifications were made with Kleinman's knowledge and through him as the corporation officer. Kleinman did not individually agree to the changes made.

After Snelling abandoned the premises, Regal sued Snelling in New York State and received a judgment for rent arrearages. The trial court in the present action entered summary judgment for Kleinman on the ground that the modification of the lease agreement without Kleinman's consent discharged the guarantee. ¹ See Becker v. Faber, 280 N.Y. 146, 19 N.E.2d 997 (1939). The appellee urges as an additional ground for affirmance that the record shows, without genuine issue of material fact, the establishment of his defense of constructive eviction. We do not set forth the facts related to this condition because the record reveals that the entry of the summary judgment was on the basis set forth above and the record clearly shows a genuine issue of material fact of whether there was a constructive eviction.

We hold that it...