99 Realty Companyv.Eikenberry

Appellate Division of the Supreme Court of New York, First DepartmentAug 14, 1997
242 A.D.2d 215 (N.Y. App. Div. 1997)
242 A.D.2d 215660 N.Y.S.2d 583

August 14, 1997

Appeal from the Supreme Court, New York County (Norman Ryp, J.).


Plaintiff, a landlord, commenced this action against the tenant, a law firm and its three individual partners, and Schoolman, Shatzkin Furman, P. C., the tenant's assignee, for unpaid rent arrears. The tenant claims that it vacated the premises and ceased paying rent in reliance on the landlord's purported oral representation that if its assignee vacated, the demised premises would be renovated for quick re-rental and the tenant's liability mitigated. The tenant's assignee delivered to the landlord a letter unconditionally surrendering the premises without any mention of this alleged understanding. The lease in question expressly barred any oral modification or release of the tenant. The lease contained both a "no waiver clause" and general merger clause barring modification except by writing. Acceptance of a surrender of the premises could be accomplished only by a writing signed by the landlord. No employee of the landlord was authorized to accept keys or otherwise terminate the lease. Rent was due and payable up to the time of re-entry, dispossess or expiration. The tenant's rescission defense, based solely on the alleged oral promise of plaintiff's Mr. Fradkin to renovate and re-let, amounts to no more than an agreement to agree (see, e.g., Two Wall St. Assocs. Ltd. Partnership v. Anderson, Raymond Lowenthal, 183 A.D.2d 498). In any event, absent written memorialization of the alleged lease modification, the claim is barred by the lease's clear and unambiguous provisions (supra). Nor does the alleged oral promise in the circumstances, constitute an estoppel. No clear and unambiguous promise upon which there was reliance has been established. (Ripple's of Clearview v. Le Havre Assocs., 88 A.D.2d 120, 122, lv denied 57 N.Y.2d 609.) The actions by defendant Eikenberry allegedly taken in reliance on Fradkin's promise are clearly not "`unequivocally referable'" to the promise (Anostario v. Vicinanzo, 59 N.Y.2d 662, 664). Thus, there are no issues as to the rescission defense and leave to amend to assert the defense should have been denied.

As to defendant Futterman's argument that he was no longer a partner of the tenant law firm at the time the lease was executed, having previously, by written agreement, withdrawn as a partner, issues as to whether he was a partner by estoppel (see, Partnership Law § 27; Royal Bank Trust Co. v. Weintraub, Gold Alper, 68 N.Y.2d 124) preclude summary judgment in his favor. The landlord, of course, was not chargeable with knowledge of the partners' private agreement. The partnership continued to use Futterman's name, and he continued to practice as a non-equity partner, whose earnings consisted of the proceeds from his own billings. At the very least, a question of fact is presented as to plaintiff's reliance or Futterman's status as a partner.

Although the order appealed from is silent with respect to defendants' other affirmative defenses, this Court may search the record on appeal of a motion for summary judgment and grant relief, where appropriate (Tele-Pac, Inc. v. Grainger, 168 A.D.2d 11, 20, lv dismissed 79 N.Y.2d 822). The defense that landlord failed to credit the amount of the security deposit against amounts alleged to be owed is without merit. As the record shows, the landlord represents that it did, in fact, credit the tenant and its assignee for the security deposit and accrued interest. Since the tenant's assignee voluntarily surrendered possession of the demised premises, there was no actual eviction and, thus, the affirmative defense alleging actual eviction should have been dismissed. Nor did the landlord have any obligation to allow defendant Eikenberry to reoccupy the premises after the assignee's surrender of possession. Thus, the affirmative defense alleging constructive eviction based on the landlord's refusal is meritless. The affirmative defense based on the incorrect calculation of the unpaid rent and escalation charges goes to the amount due and will be addressed at the hearing to determine the amount owed the landlord. The remaining affirmative defenses raise related issues that cannot be disposed of on this record. The affirmative defense alleging consumer fraud requires a determination as to whether the landlord overbilled tenant.

As to the discovery feature of the IAS Court's order, only Fradkin need be produced for deposition since he appears to be the only one of the three individuals named in the order with any specific knowledge of the lease and the tenancy involved.

Concur — Sullivan, J.P., Milonas, Nardelli and Williams, JJ.