Riverdale Motor Lodge, Inc. v. Sidney Schwartz Management Corp.

CourtNew York City Municipal Court
Writing for the CourtPAUL R. SHAW
Citation231 N.Y.S.2d 578
PartiesRIVERDALE MOTOR LODGE, INC., Landlord, v. SIDNEY SCHWARTZ MANAGEMENT CORP., Tenant.
Decision Date01 January 1962

Page 578

231 N.Y.S.2d 578
RIVERDALE MOTOR LODGE, INC., Landlord,
v.
SIDNEY SCHWARTZ MANAGEMENT CORP., Tenant.
Municipal Court of City of New York, Borough of Bronx,
Second District.
Jan. 1, 1962

Page 579

Buchwald, Nadel & Lippman, and Bernard Buchwald, New York City, for landlord.

Avel B. Silverman, New York City, for tenant.

PAUL R. SHAW, Justice.

The facts in this summary proceeding for non-payment are undisputed, except on the issue of service. The landlord is the Riverdale Motor Lodge, Inc. On January 16, 1961, the landlord, herein referred to as Motor Lodge, entered into a lease of the motel to Riverdale Motor Inn, herein referred to as Motor Inn. On January 11, 1962, Motor Inn sold the motel business, contents and lease, to Sidney Schwartz Management Corp., herein referred to as Schwartz Management. The lease was assigned with the consent of Motor Lodge. Schwartz Management assumed all of the obligations of the tenant and went into possession, which it still holds. The sale was at least in part on a deferred payment basis and as security for payment Schwartz Management executed a re-assignment of the lease to Motor Inn and deposited it in escrow with a firm of attorneys, conditioned upon payment, to be cancelled if the payments

Page 580

were made or to be delivered to Motor Inn on demand in the event of default. Schwartz Management paid the rent through April, 1962. Upon Schwartz Management failing to pay May and June, 1962 rent totaling $18,000, Motor Inn declared a default and demanded delivery of the reassignment of lease from the escrow agent, who complied on June 14, 1962. Motor Inn then brought non-payment proceedings against Schwartz Management, which was dismissed.

Motor Lodge now brings this non-payment proceeding for May and June, 1962 rent against Schwartz Management. Schwartz Management served and filed its answer, alleging a general denial and two affirmative defenses, one claiming payment of rent and the other alleging a re-assignment of the lease from Schwartz Management to Motor Inn on January 11, 1962, with the consent of Motor Lodge.

Both parties agreed that there is no issue of fact and no substantial proof was offered by either party on the facts as summarized above. No proof of payment was offered.

The tenant did offer evidence to deny personal service in support of its motion to dismiss so much of the petition as demanded personal money judgment. This was received without objection, although the Municipal...

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