Stahl Associates Co. v. Mapes
| Decision Date | 06 June 1985 |
| Citation | 111 A.D.2d 626,490 N.Y.S.2d 12 |
| Parties | STAHL ASSOCIATES CO., Plaintiff-Appellant, v. Pierson G. MAPES, et al., Defendants-Respondents. |
| Court | New York Supreme Court — Appellate Division |
R.F. Czaja, New York City, for plaintiff-appellant.
J.H. Aibel, New York City, for defendants-respondents.
Before KUPFERMAN, J.P., and ROSS, ASCH and FEIN, JJ.
Order, Supreme Court, New York County, entered September 4, 1984, denying plaintiff's motion for summary judgment on its first and second causes of action as against defendants Pierson G. Mapes and Patricia C. Mapes (the Mapes), granting the said defendants' cross motion to dismiss the complaint as against them, and denying plaintiff's motion for summary judgment seeking to recover attorney's fees from the Mapes, unanimously modified on the law to deny the Mapes' cross-motion to dismiss the complaint, and otherwise affirmed, without costs.
Stahl Associates Co. (Stahl) is the landlord of premises 404 East 55th Street, Manhattan. The Mapes were the prime tenants of record of Apartment 8E. Defendant Harold Barr (Barr) was an undertenant of the Mapes, who subleased the apartment for a period of 2 years 6 1/2 months, pursuant to a written sublease agreement with the consent of the landlord. The Mapes' original lease ran from October 1976 for a two-year term. The lease was renewed through January 31, 1982, pursuant to a renewal agreement. The sublease to Barr, executed with the landlord's consent on June 11, 1979, ran for a 2 year 6 1/2 month period from June 15, 1979 to December 31, 1981.
In August and September 1981, the landlord submitted a lease extension agreement to the Mapes for a three-year period ending January 31, 1985. The Mapes indicated their intention to renew the lease for the three-year term, provided the sublease to Barr could be extended for the same period. Stahl denied permission for the sublease renewal. The Mapes were advised by Stahl that Barr was to quit the premises by December 31, 1981. The Mapes responded by notice dated December 29, 1981, that they would terminate the "current lease as specified, on 1/31/82."
On January 20, 1982, prior to the expiration of the lease to the Mapes, Stahl applied to the Conciliation and Appeals Board (CAB) for permission to deny a renewal lease to them as prime tenants on the ground that the apartment was not their primary residence. The application stated that Barr "is still in residence" and "[p]roceedings have been instituted in the Civil Court". The CAB granted Stahl's request. Accordingly, the lease expired pursuant to its terms on January 31, 1982.
On January 27, 1982, Stahl served the Mapes with a "notice to cure", informing them that Barr was holding over and demanding cure by February 10, 1982. A "notice of termination", dated February 19, 1982, was also served upon the Mapes, purporting to terminate their tenancy effective March 4, 1982, for failure to comply with the "notice to cure." Stahl's summary proceedings to evict Barr as a holdover continued for approximately one year, without success. The holdover proceedings were defended by Barr and not the Mapes. That proceeding was dismissed, as was a subsequent eviction proceeding by Stahl against Barr. No moneys were collected from Barr, despite a stipulation to pay use and occupancy and an offer of payment by Barr.
This ejectment action was brought on or about April 7, 1983 against both Barr and the Mapes, seeking (1) immediate possession of Apartment 8E, (2) damages equal to the reasonable value of use and occupancy of the apartment for the period after February 1982 up to the time of removal or eviction, and (3) payment of attorney's fees.
Special Term granted summary judgment to Stahl against Barr on the first two causes of action, and dismissed the complaint against the Mapes upon the ground that their liability and right to occupancy of the apartment terminated on the expiration of the prior lease on January 31, 1982. The court stated:
"Plaintiff, having obtained an order from the C.A.B. that granted plaintiff rights to refuse Mapes a renewal ended the privity between the parties and an action against Mapes for damages or rents due does not lie."
Plaintiff contends that, as prime tenants, the Mapes are obligated to pay the reasonable value of the use and occupancy of the premises for the period their subtenant Barr held over beyond the term of the major lease and the sublease. Paragraph 24 of the major lease provides in part:
A surrender by operation of law occurs when the parties to a lease do some act inconsistent with the subsisting relationship of landlord and tenant, indicating that they have both agreed to a surrender (Gray v. Kaufman Dairy & Ice Cream Co., 162 N.Y. 388, 56 N.E. 903). This generally occurs when a tenant abandons possession during the term, indicating his intention to yield his interest, and the landlord re-takes possession in such manner as to show he intends to reassume dominion and control (Kottler v. New York Bargain House, 242 N.Y. 28, 150 N.E. 591; Bedford v. Terhune, 30 N.Y. 453).
Despite the arguments of counsel and the language of paragraph 24 of the lease, bespeaking a "surrender" at the expiration of the lease by its terms, this is not strictly speaking a surrender. At the expiration of the term the tenant leaves because his rights to possession have expired. There is no surrender of the term, because there is no estate to be reconveyed (Rasch, New York Landlord & Tenant: Summary Proceedings [2d ed.], section 868).
Thus the issue here is not one of surrender. The Mapes were not in...
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