Opinion
No. L & T T071816/14.
11-20-2014
BROOKLYN LIVINGSTON, LLC, Petitioner–Landlord, v. Eliezer PEGUERO and Dario Castro, Respondents–Tenants, J and V Beauty Salon, Inc., a/k/a J & V Dominican Salon, Twins Barber Shop and XYZ Corp., Respondents–Undertenants.
The Law Offices of Perry Ian Tischler, PC, Bayside, Attorney for petitioner.
The Law Offices of Perry Ian Tischler, PC, Bayside, Attorney for petitioner.
Opinion
REGINALD A. BODDIE, J.
The within landlord-tenant case was heard before me at inquest on November 6, 2014, after the respondent undertenants, also referred to as subtenants herein, failed to answer or appear in the proceedings.
Procedural History
Petitioner-landlord initially commenced this case as a nonpayment proceeding against the named respondent tenants and undertenants seeking a total of $29,3698.86 in rental arrears as follows: $283.46 for October 1, 2013, $5,680 monthly for November 2013 through February 2014, and $6,3633.40 for March 2014. Pursuant to the lease, petitioner served a twenty-day notice to cure and a five-day notice of termination, which is more akin to a holdover proceeding rather than the customary oral or written rent demand given in a nonpayment proceeding. The respondent-tenants appeared by counsel and, on September 22, 2014, without filing an answer, entered into a stipulation of settlement converting the case to a holdover proceeding, granting landlord a judgment of possession and warrant of eviction forthwith with execution stayed through November 15, 2014. Respondent-undertenants failed to answer or appear. As a result, an inquest in the matter of the undertenants was heard before me on November 6, 2014, wherein landlord sought a judgment of possession only against the undertenants. The primary question presented is what rights if any do undertenants have when prime tenants surrender possession to the landlord, as here.
Case Law and Analysis
It has previously been noted by the Appellate Division that “As a general rule, where a landlord and prime tenant enter into an agreement to voluntarily terminate the paramount lease, the subtenant becomes the immediate tenant of the original lessor and the interest of the subtenant and terms of the sublease continue as if no termination occurred” (380 Yorktown Food Corp. v. 380 Downing Drive, LLC, 107 AD3d 786 [2d Dept 2013], quoting Goldcrest Transp. v. Across Am. Leasing Corp., 298 A.D.2d 494 [2d Dept 2002] ).
However, an exception applies when the prime lease is terminated by expiration of the term of the prime tenant or reentry for a condition broken (Id. ). As aptly stated by the Second Department, “... because a sublease is dependent upon and limited by the terms and conditions of the paramount lease from which it is carved, a subtenancy may be terminated by the expiration of the term of the prime tenant, or a re-entry by the landlord for a condition broken” (380 Yorktown Food Corp., 107 AD3d at 788, quoting Goldcrest Transp., 298 A.D.2d at 495, citing see Precision Dynamics Corp. v. Retailers Representatives, 120 Misc.2d 180 [Civ Ct, New York County 1983] ; see also 7–84 Warren's Weed New York Real Property § 84.03[4] [2012] ).
In Goldcrest, the prime tenant, Across America, breached the lease by abandoning the premises and ceasing to pay rent after renting a portion of the space to Goldcrest (Goldcrest Transp., 298 A.D.2d at 495 ). Subsequently, the landlord notified Goldcrest of the breach and its intention to evict Goldcrest (id. ). To avoid eviction, Goldcrest offered to rent the entire premises and sublease to a new subtenant, to which the landlord agreed (id. ). However, the landlord instead entered into a new prime lease with another entity from which Goldcrest became a subtenant at a higher rental amount (id. ). Goldcrest then sued Across America for the difference (id. ). The Appellate Division held Goldcrest was not entitled to continued possession in absence of the landlord's consent due to the breach of the lease by Across America (id. ). Therefore, Goldcrest did not needlessly agree to an increase in rent to remain in the premises since it otherwise could have been evicted, and the complaint against the prime tenant for damages could proceed (id. ).
Here, it is also undisputed that the respondent tenants surrendered possession of the premises after the landlord sought to regain possession due to breach of the lease by virtue of the nonpayment of rent. Consequently, the prime tenants' relinquishment of possession as evidenced by the stipulation, the documents of record in the case file, and produced at inquest, establish that the re-entry of possession by the landlord was the result of a broken lease condition; namely, the nonpayment of rent. Therefore, the respondent undertenants may not continue in possession absent the consent of the landlord, which has been denied (Goldcrest Transp., 298 A.D.2d 494 ; 380 Yorktown Food Corp., 107 AD3d 786 ). Since the undertenants are not entitled to remain in the premises, the Court has not reached any other issues.
Conclusion
Accordingly, the petitioner-landlord is granted a judgment of possession against subtenants (the named undertenants here) J and V Beauty Salon, Inc., a/k/a J & V Dominican Salon, Twins Barber Shop and XYZ Corp. The warrant shall issue forthwith, execution stayed ten days from the date of service of this Decision and Order on the named respondent-undertendants.?