Schmaeling v. Schmaeling

• Decision Date: 08 March 1985
• Citation: 487 N.Y.S.2d 494,127 Misc.2d 763
• Parties: Richard SCHMAELING, Petitioner, v. Richard SCHMAELING, d/b/a Hilltop Service Station, Respondent (Tenant), Walter Coven, Respondent (Undertenant).
• Court: New York District Court

Page 494

487 N.Y.S.2d 494

127 Misc.2d 763

Richard SCHMAELING, Petitioner, v. Richard SCHMAELING, d/b/a Hilltop Service Station, Respondent (Tenant) Walter Coven, Respondent (Undertenant).

District Court, Nassau County Second District, Hempstead Part.

March 8, 1985.

Sheehy & Friedler by Sidney Friedler, Hempstead, of counsel, for petitioner (landlord).

Fireman & Kramer by Marvin Kramer, Brooklyn, of counsel, for respondent Walter Coven (undertenant).

DECISION, VERDICT AND JUDGMENT AFTER TRIAL

JULES E. ORENSTEIN, Judge.

The petitioner Richard Schmaeling commenced this summary holdover proceeding against himself, doing business as Hilltop Service Station, the respondent tenant herein and against Walter Coven, as the respondent undertenant in possession of the subject premises, a gasoline station.

The petition recites that respondent Schmaeling d/b/a Hilltop Service Station is the tenant and entered into possession of the premises under a written rental agreement on or about December 17, 1979 between said respondent and the landlord for a term of 5 years ending December 31, 1984.

The petitioner seeks to recover possession of the premises from the respondent undertenant Walter Coven (hereafter "Coven") who is in possession of the premises under the terms of a sublease agreement between petitioner Richard Schmaeling and Coven which term expires June, 1988, on the grounds that the term of the overlease between petitioner/landlord Richard Schmaeling and respondent Richard Schmaeling expired on December 31, 1984.

Trial was conducted on February 14, 1985 and decision reserved at its conclusion.

The petitioner, Richard Schmaeling, the landlord/owner of the subject premises, and respondent, Richard Schmaeling d/b/a Hilltop Service Station are one and the same person.

In June, 1983, petitioner and Coven entered into a written lease agreement for the subject premises. Petitioner introduced into evidence as Petitioner's Exhibit # 1 the executed lease agreement. The petitioner's attorney referred to the document as an "underlease".

The instrument, a form agreement, on its face is titled a sublease agreement. The document refers to the parties of the sublease as Richard Schmaeling, overtenant and Walter Coven, undertenant. The agreement refers to an overlease.

The document recites as "Information from overlease," that Richard Schmaeling is the landlord, that Richard Schmaeling is the overtenant, the date of the overlease is July 1, 1983 and the term is six months from August 1, 1983 to December 31, 1983.

Said agreement provides that a copy of the overlease is attached as an important part of the sublease. The court permitted parol testimony regarding the negotiation and execution of the sublease since respondent's answer and counterclaim contain allegations of fraud. However, no copy of the overlease was ever attached to the sublease nor was it ever offered with Exhibit # 1. When the parties negotiated the agreement, no copy of the overlease was sent to respondent's attorney. Neither petitioner nor his attorney ever showed the purported overlease to respondent prior to or at the time the lease was executed.

Attached to the form sublease agreement is a typewritten rider setting forth additional obligations and rights of parties. Paragraph 16 of the rider provides:

"Provided the subtenant is not in default in any of the terms, conditions and/or provisions of this sublease agreement, the subtenant shall have the privilege of renewing this sublease agreement for 9 additional 6 month terms at the same rental, which option shall automatically occur without notice unless the subtenant shall notify the overtenant at least 1 month in writing, before any renewal, of its intention not to exercise the option."

The rental term is changed, by handwritten amendment along the side of the rider page. The amendment provides that the rent will increase $25 at the exercise of the 2nd, 4th, 6th and 8th options. The amendment expressly recites the rental amount for those years. The 5th year's rent being $850 per month.

While no proof at all was adduced by petitioner as to the existence of an overlease dated July 1, 1983, petitioner did introduce into evidence as Petitioner's Exhibit # 2 a purported lease agreement dated December 17, 1979 between Richard Schmaeling and Richard Schmaeling d/b/a Hilltop Service Station, the same lease agreement upon which petitioner brings the instant proceedings.

The only signatures appearing on this purported lease are those of Richard Schmaeling. His signature appears twice on the signature lines. The December 17, 1979 lease was never recorded. Petitioner testified that he had forgotten about this lease when he negotiated and executed the sublease with Coven and did not find the lease until six or eight weeks before the time of trial.

The December 17, 1979 purported lease, by its terms, runs for a period of five years, commencing on January 1, 1980 and expires on the 31st day of December, 1984.

At the trial, the Court took judicial notice that petitioner had commenced a prior summary proceeding against Coven in November, 1984, to recover possession of the same premises. The petitioner was permitted to withdraw said petition with prejudice.

The court notes that the Petition in the earlier summary proceeding referred to Richard Schmaeling as landlord and Walter Coven as tenant. The petition also recites that tenant Coven entered into possession of the premises pursuant to a written agreement entered into in June, 1983. The grounds for the summary proceeding, were for an alleged breach of an agreement with an oil company.

It was adduced at trial that Coven has been paying rent under the terms of the 1983 lease to petitioner who deposits the rent into his personal account.

Conclusions of Law

The law is clear that a subtenant receives his estate from his sublessor and that the sublease is dependent upon the paramount lease for its existence. (See, 1 Rasch, Landlord and Tenant, Summary Proceedings [2d Ed.] § 234 p. 299.)

Accordingly, if the lease executed by petitioner and Coven is a sublease of a paramount lease which has terminated or expired, then too must Coven's sublease come to an end. (See, Bove v. Coppola, 45 Misc. 636, 91 N.Y.S. 8 (Appellate Term 1904)).

Petitioner's theory as to his right to recover possession from Coven is that petitioner as owner/landlord created a tenancy by lease agreement with himself for a period of years which expired on December 31, 1984.

It follows, petitioner contends, that he could only grant Coven whatever interest he had in the premises under the terms of the "overlease" he created in himself.

The Court disagrees. Petitioner's interest in the subject premises at the time he executed the sublease agreement with Coven was that of owner and landlord and not tenant.

Two well-settled principles of law require this Court to hold that petitioner's interest in the subject premises was that of owner/landlord, not tenant at the time he executed the lease agreement with Coven.

The relationship of landlord and tenant, except for statutory tenancies, can only be created by contract either express or implied. (Stern v. Equitable Trust Co., 238 N.Y. 267, 144 N.E. 578 (1924); See, Rasch, supra at §§ 1, 11). A lease is...