Opinion
November 13, 1967
In an action to require defendants, as landlords, to execute and deliver to plaintiff, the assignee of holders of a mortgage on a lease, on which lease the tenant was in default, a new lease in place of the defaulted lease in pursuance of certain provisions of the defaulted lease, defendants appeal from an order of the Supreme Court, Suffolk County, dated May 5, 1967, which denied their motion for summary judgment dismissing the complaint and canceling a notice of pendency of the action [ Berger-Tilles Leasing Corp. v. York Associates, 53 Misc.2d 490] . Order reversed, on the law, with $10 costs and disbursements, and motion for summary judgment dismissing the complaint and cancelling the notice of pendency of the action granted, with $10 costs. In our opinion, the stay pendente lite, granted in the prior action in which the tenant was the plaintiff, and the stay pending appeal from the judgment entered in that action, granted by this court and vacated on December 16, 1964 prior to affirmance of that judgment ( South Bay Center v. York Associates, 22 A.D.2d 1016), presented no effective bar to a demand for a new lease prior to June 30, 1965 by the present plaintiff's assignors, as leasehold mortgagees, based upon the defaults of the tenant, as specified in the landlord's several termination notices of April 9, 1963, April 22, 1963, May 10, 1963 and June 5, 1963. The leasehold mortgagees were not parties to the prior action and the act of the plaintiff therein, the tenant, in procuring the stays, may not serve as a reason why either the leasehold mortgagees or the landlord were precluded from negotiating for a new lease as prescribed in the lease and leasehold mortgage. "It is no excuse that one has been prevented by a stranger from performing his contract" ( Wilkinson v. First Nat. Fire Ins. Co., 72 N.Y. 499, 505). The stays in the prior action operated only on proceedings intrinsically involved in that lawsuit and could not serve as restraints on external matters, such as a third-party's contractual right to a new lease ( Matter of Cantelli v. Town Bd. of Town of Oyster Bay, 30 Misc.2d 39, 40). Absent any restraining impediment and within the 30-day period prescribed therefor, the assignors of the present plaintiff were free to have demanded and brought action for a new lease subsequent to the landlord's said notices of termination. In the event of such suit, despite the prior pendente lite stay in the tenant's prior action, such suit by the assignors could have been continued until the tenant's action was disposed of ( De La Vergne Mach. Co. v. New York Brooklyn Brewing Co., 125 App. Div. 649, 650; Bartley Bros. Constr. Corp. v. National Sur. Corp., 280 App. Div 798, 799), since both actions would involve simultaneous prosecution of different procedures involving the same controversy ( Flash v Goldman, 278 App. Div. 829) and the determination of one action would dispose of the issues in the other ( Post v. Banks, 67 App. Div. 187, 188). There was no bar to such later action by the assignors, since an order of stay in one action did not enjoin other persons, not parties, from proceeding in another action ( Barnes v. Midland R.R. Term. Co., 153 App. Div. 365, 366), brought for entirely different purposes ( Belasco Co. v. Klaw, 98 App. Div. 74, 75). The two suits might have been consolidated ( Pergament v. Herrich Credit Corp., 200 N.Y.S.2d 535, 541) or the later one stayed so as to avoid a multiplicity of suits involving a concurrence of subject matter and parties in interest ( Matter of Harpur, 103 N.Y.S.2d 894, 896-897). In the later action, as in all such instances, an application for an appropriate stay would be one addressed to the court's discretion ( Cye, Haberdashers v. Crummins, 142 N.Y.S.2d 682, 684, affd. 286 App. Div. 1077) and independently of statute the court could have ordered a consolidation or stay to effect a parity of result with the prior action ( Pollak v. Long Is. Light Co., 246 App. Div. 765). Under the circumstances, there was no bar to an action by the assignors for the purpose of compelling the landlord to issue a new lease, if the landlord's termination of the 1959 lease was upheld in the tenant's prior litigation. In any event, the last restraint in the prior action fell as of December 16, 1964, when this court vacated the stay previously granted pending appeal from the judgment in that action, and there was no restraint subsequent to that date precluding demand by plaintiff's assignors for a new lease. Consequently, the demand for a new lease, dated June 30, 1965, upon which the instant action is predicated, was not made within the 30-day period prescribed therefor. In addition to the foregoing, it is our view that articles 21, 34(b) and 34(f) of the lease, dealing with the landlord's right to invoke a conditional limitation of the leasehold period when faced by default on the part of the tenant, termination of the lease as a consequence thereof, and the right of the leasehold mortgagee to demand a new lease in the event of such termination, are to be read together. When so read, contrary to the view of the learned Special Term herein, it is our opinion that the same form of notice, prescribing termination of the lease, based on the tenant's default, was properly served simultaneously upon the tenant and the leasehold mortgagees. No other or additional form of notice was required for the leasehold mortgagees, advising of "what has happened" rather than "that which will happen", as the learned Special Term phrased it. The language of the articles of the lease is bare of any requirement that a further notice of actual termination was necessary to start running the leasehold mortgagees' option to demand a new lease. Since the notice of termination was ruled valid as to the tenant ( South Bay Center v. York Associates, 22 A.D.2d 1016, supra), it was equally valid as to the leasehold mortgagees. However, assuming arguendo that an actual notice of termination was required for the leasehold mortgagees, the landlord's letters of May 10, 1963 and June 5, 1963 satisfied such requirement. Beldock, P.J., Christ, Brennan, Rabin and Hopkins, JJ., concur.