Riverside Research Institute v. KMGA, Inc.

• Decision Date: 01 July 1986
• Citation: 506 N.Y.S.2d 302,497 N.E.2d 669,68 N.Y.2d 689
• Parties: , 497 N.E.2d 669 RIVERSIDE RESEARCH INSTITUTE, Plaintiff, and Warwick Investors, Appellant-Respondent, v. KMGA, INC., et al., Respondents-Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 302

506 N.Y.S.2d 302

68 N.Y.2d 689, 497 N.E.2d 669

RIVERSIDE RESEARCH INSTITUTE, Plaintiff, and Warwick Investors, Appellant-Respondent, v. KMGA, INC., et al., Respondents-Appellants.

Court of Appeals of New York.

July 1, 1986.

Sherman J. Saxl, New York City, for appellant-respondent.

Arthur M. Handler and Michael M. Meadvin, New York City, for respondents-appellants.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 108 A.D.2d 365, 489 N.Y.S.2d 220, should be affirmed, without costs.

Plaintiff Warwick, a New York partnership which owns a commercial building located at 80 West End Avenue in Manhattan, commenced this action to recover rent due under a lease after the defendant tenant vacated the premises prior to the expiration of the lease. The Appellate Division, First Department, modified a judgment of the Supreme Court, New York County, entered upon a decision following a nonjury trial, by, among other things, reducing the amount of the judgment and requiring plaintiff to indemnify defendant for any payments that it is required to make to a sublessor. The Appellate Division, disagreeing with Trial Term, found that there was a surrender of the premises, thus terminating the obligation to pay rent. Plaintiff appeals as of right from the modification (CPLR former 5601); defendant appeals by permission of the Appellate Division.

A surrender by operation of law occurs when the parties to a lease both do some act so inconsistent with the landlord-tenant relationship that it indicates their intent to deem the lease terminated (Harris v. Hiscock, 91 N.Y. 340, 344; 2 Rasch, Landlord and Tenant § 859 [2d ed]; see, Gray v. Kaufman Dairy & Ice Cream Co., 162 N.Y. 388, 56 N.E. 903). As distinguished from an express surrender, a surrender by operation of law is inferred from the conduct of the parties (Bedford v. Terhun 30 N.Y. 453, 463; Rasch, op. cit. § 859). Whether a surrender by operation of law has occurred is a determination to be made on the facts. We must determine whether the Appellate Division's finding that there was a surrender or Trial Term's findings that there was not more nearly comports with the weight of the evidence (Cohen and Karger, Powers of the New York Court of Appeals § 112 [rev ed.] ).

Review of the record establishes that defendant, acting in response to plaintiff's request, gave plaintiff advance written notice that it was about to vacate the premises pursuant to an earlier "understanding." Plaintiff thereafter physically assisted defendant in departing and billed defendant for nominal damages sustained in the move. These facts support the inference drawn by the Appellate Division that a surrender by operation of law has occurred.

The record also indicates that plaintiff had held itself out as the agent of a tenant which had subleased a portion of the building to the defendant and, therefore, was liable...