LO RUSSO v. GREAT 110, INC

4 Citing cases

  1. In re Lasercad Reprographics, Ltd.

    106 B.R. 793 (Bankr. S.D.N.Y. 1989)   Cited 10 times
    Finding that title passes, and a security interest can attach, only when the funds are transferred out of escrow

    Furthermore, it appears that the drafter [or drafters] of ¶ 8 of the Assignment Agreement included language from a sublease agreement ( i.e. "rent" and "summary proceeding") even though the Assignment Agreement itself, read in its entirety, clearly contemplated a complete divestiture of control from Farmingdale to Lasercad without any reversionary interest. It is well established law in New York that an assignor of a lease cannot maintain a summary proceeding for eviction against its assignee. Murray Hill Mello v. Bonne Bouchee Restaurant, 449 N.Y.S.2d at 874 (citing Lo Russo v. Great 110, Inc., 59 Misc.2d 40, 298 N YS.2d 61 (1969); N.Y. Real Prop. Actions and Proc. Law § 721 (1977). Thus, it is clear that under New York law, for Farmingdale to ever have had a possessory right in the Lease, it was necessary for Lasercad to reassign the Lease (or the Assignment Agreement) to Farmingdale as security of performance of its obligations or for Farmingdale to obtain a leasehold mortgage.

  2. Friends of Yelverton, Inc. v. 163rd Street Improvement Council, Inc.

    135 Misc. 2d 275 (N.Y. Civ. Ct. 1986)   Cited 12 times
    Deeming defendant's action in evicting licensee without resort to summary proceedings improper on the facts presented

    Contrary to the city's assertions, forcible entry and detainer is not restricted to situations involving a landlord-tenant relationship (Markun v Weckstein, 100 Misc. 668 [App Term, 1st Dept 1917]; 2 Rasch, New York Landlord Tenant — Summary Proceedings § 1168, at 600). Yelverton at the least is a licensee; a party given permission to do a series of acts upon the property of another without any estate in the property (Lo Russo v Great 110, 59 Misc.2d 40, 41 [Dist Ct, Suffolk County 1969]; 1 Rasch, New York Landlord Tenant — Summary Proceedings § 71, at 95-96). Yelverton had the right to run a school at the Center the way such typical licensees as the operator of a department in a retail store or a laundry room concession in an apartment house are given the right to use the property of another.

  3. Murray Hill v. Bonne Bouchee

    113 Misc. 2d 683 (N.Y. Civ. Ct. 1982)   Cited 5 times
    Analyzing the difference between an assignment and a sublease, with the former being distinguished by the fact that the lessor retains no reversionary interest

    But, an assignor of a lease cannot maintain a summary proceeding for eviction against its assignee. ( Lo Russo v Great 110, Inc., 59 Misc.2d 40; RPAPL 721.) The petition is therefore dismissed.

  4. Howard Corp. v. Robison Co.

    61 Misc. 2d 939 (N.Y. Misc. 1970)

    One reason may be (contrary to defendant's suggestion that the answer is found in this particular landlord's unique "audacity") the paralyzing uncertainty such a doctrine would create, and the pall it would cast over any effort by landlord to re-let the premises, if any new letting were made subject to destruction by the unilateral exercise of the assignor's supposed option at any time prior to the expiration date of the leases. Then, too, there is some authority to be found pointing in the opposite direction. It has been held in Lo Russo v. Great 110 ( 59 Misc.2d 40, 41) that since "an assignment of a leasehold is a transaction whereby a lessee transfers his entire interest in the demised premises for the unexpired term of the original lease, with all the reversionary estate in the property", (emphasis added), the assignor cannot maintain a summary proceeding against an assignee to recover possession of the property for nonpayment of the rent reserved under the assigned lease. Since a summary proceeding will not lie to recover possession, it would follow that a mere demand for possession could stand on no higher a footing, and the refusal of landlord herein to comply with such demand was not a breach of the lease or any other duty imposed by law.