Opinion
March 13, 1978
In an action, inter alia, to recover rent due on a lease of equipment, the defendants appeal from an order of the Supreme Court, Nassau County, entered June 3, 1977, which denied their motion to dismiss the complaint and granted plaintiff's cross motion to add the European-American Bank Trust Company as a party defendant pursuant to CPLR 1001. Order affirmed, with $50 costs and disbursements. Plaintiff-respondent leased property to the defendant-appellant Hilton-Zadek Optical Corp., and then assigned the lease to the European-American Bank. However, plaintiff agreed to be liable to the European-American Bank in the event that the lessee defaulted. When the lessee failed to pay rent due, plaintiff instituted this action to enforce the lease. Defendants moved to dismiss the complaint on the ground that plaintiff had no cognizable interest in the enforcement of the lease, having assigned it to the European-American Bank. The Special Term denied defendants' motion to dismiss and they appeal. The order should be affirmed. Since plaintiff agreed to be liable to the European-American Bank in the event that the lessee defaulted, plaintiff stands as surety on the debt to the bank and may maintain an action to enforce the lease. When the complaint is read together with the amended complaint, a cause of action is pleaded, however inartfully, and a dismissal of the complaint at this late date would not serve the interests of justice. Damiani, J.P., Suozzi, Gulotta and O'Connor, JJ., concur.