Ripple's of Clearview, Inc. v. Le Havre Associates
| Decision Date | 29 October 1981 |
| Parties | RIPPLE'S OF CLEARVIEW, INC., Plaintiff-Respondent, v. LE HAVRE ASSOCIATES, Defendant-Petitioner. |
| Court | New York Supreme Court |
In this declaratory judgment action, defendant moves to strike a demand for a jury trial served by plaintiff.
By this declaratory judgment action plaintiff seeks a determination that it retains rights as a tenant under a leasing agreement to realty presently owned by defendant. Plaintiff entered into the leasing agreement prior to a foreclosure action brought against the original owner. Defendant's predecessor in title purchased the property at the foreclosure sale. It is plaintiff's contention that its rights continued by reason of the conduct and promises made by defendant and its predecessor in title. Defendant commenced a summary proceeding to recover possession in the Civil Court. Upon motion of the plaintiff that action was removed and consolidated with this action. The commencement of an action for declaratory relief does not constitute a bar to a jury trial if the action would otherwise have been triable by a jury as of right. See 4 Weinstein-Korn-Miller, N.Y.Civ.Prac. par. 4101.39; 7 Carmody-Wait 2d, N.Y.Prac. § 49:34.) In determining this question the court must ascertain which traditional remedy would most likely have been used to present plaintiff's claim had declaratory relief not been available. (See The Independent Church of the Realization of the Word of God v. Bd. of Assessors, 72 A.D.2d 554, 420 N.Y.S.2d 765.)
By its first cause of action plaintiff alleges that it attorned to the defendant and its predecessor in title, giving rise to plaintiff's right under the old lease. Attornment is an act or agreement by which a tenant accepts one person in place of another as its landlord. (Krasner v. Transcontinental Equities, Inc., 70 A.D.2d 312, 420 N.Y.S.2d 872.) It does not create a new tenancy, but rather substitutes a new landlord subject to all of the terms and conditions of the original lease. (Austin v. Ahearne, 61 N.Y. 6; see Geo. Benz & Sons v. Willar, 198 Minn. 311, 269 N.W. 840, Ann., 109 ALR 443, 450.) By its second cause of action plaintiff alleges that the defendant was estopped or barred from seeking termination of the tenancy. Basing its claim on alleged representations and conduct, plaintiff seeks the application of an estoppel in pais or equitable estoppel to bar defendant's attempted repossession.
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Ripple's of Clearview, Inc. v. Le Havre Associates
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