Site Five Hous. Dev. Fund Corp. v. Estate of Bullock

• Decision Date: 12 December 2013
• Parties: SITE FIVE HOUSING DEVELOPMENT FUND CORPORATION, Plaintiff–Respondent, v. ESTATE OF Eldon BULLOCK, Defendant, Nasser Abdo Alomari, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

112 A.D.3d 479

977 N.Y.S.2d 209

2013 N.Y. Slip Op. 08344

SITE FIVE HOUSING DEVELOPMENT FUND CORPORATION, Plaintiff–Respondent,

v. ESTATE OF Eldon BULLOCK, Defendant,Nasser Abdo Alomari, Defendant–Appellant.

Supreme Court, Appellate Division, First Department, New York.

Dec. 12, 2013.

Jeffrey H. Roth, New York, for appellant.

David P. Stich, New York, for respondent.

GONZALEZ, P.J., ANDRIAS, SAXE, RICHTER, CLARK, JJ.

Order and judgment (one paper), Supreme Court, New York County (Shirley Werner Kornreich, J.), entered April 18, 2013, which, insofar as appealed from as limited by the briefs, awarded plaintiff damages as against defendant Nasser Abdo Alomari, declared a December 2001 amendment to a store lease null and void, and awarded plaintiff possession of premises located at 829 Tenth Avenue, unanimously affirmed, without costs.

Alomari failed to prove that former defendant Eldon Bullock (plaintiff's president) had authority as plaintiff's agent to enter into the December 2001 amendment ( see Sponge Rubber Prods. Co. v. Purofied Down Prods. Corp., 281 App.Div. 380, 382 [1st Dept.1953], affd.306 N.Y. 776, 118 N.E.2d 479 [1954] ). It is undisputed that Bullock did not have express actual authorityto enter into the amendment. Nor did he have implied actual authority, since there is no credible evidence in the record that plaintiff performed verbal or other acts that gave Bullock the reasonable impression that he had authority to enter into the amendment ( see Greene v. Hellman, 51 N.Y.2d 197, 204, 433 N.Y.S.2d 75, 412 N.E.2d 1301 [1980] ).

Alomari relies on Riverside Research Inst. v. KMGA, Inc., 108 A.D.2d 365, 370, 489 N.Y.S.2d 220 [1st Dept.1985], affd.68 N.Y.2d 689, 506 N.Y.S.2d 302, 497 N.E.2d 669 [1986] for the proposition that “an agency may be implied from the parties' words and conduct as construed in light of the surrounding circumstances.” However, he fails to identify any words, conduct or circumstances from which an agency could be implied here. Moreover, although in the circumstances in Riverside the parties' words and conduct permitted an inference of agency, the case stands for the proposition that where an agent exceeds its authority, so that its principal is not bound, the agent is liable for any damage to the third party.

As for apparent authority, there is no credible evidence that plaintiff said anything to Alomari or did anything that would cause Alomari to believe that Bullock had authority to enter into the amendment ( see Hallock v. State of New York, 64 N.Y.2d 224, 231, 485 N.Y.S.2d 510, 474 N.E.2d 1178 [1984] ).

Alomari contends that plaintiff ratified the amendment because it did not seek to set it aside until September 2007. However, plaintiff did not know about the amendment until months after May 2006.

Alomari argues that plaintiff's sole remedy for nonpayment of rent was to commence a summary nonpayment proceeding in Civil Court after service of a statutory rent demand. However, Article 17(2) of Alomari's February 1996 lease with plaintiff provides that, upon Alomari's default in payment of rent, plaintiff “may without notice ... dispossess [Alomari] by summary proceedings or otherwise ” (emphasis added).

Alomari contends that plaintiff is not entitled to a judgment of possession because it failed to plead a cause of action for ejectment. However, plaintiff's prayer for relief requested “judgment dispossessing Alomari ... as the tenant of the Deli Premises.”

Alomari argues that equity abhors the forfeiture of a lease. However, one who seeks equity must do equity and must come with clean hands ( see55 N.Y. Jur. 2d, Equity §§ 93–112), and Alomari does not satisfy these criteria.

...