268 A.D. 1042 | N.Y. App. Div. | 1945
Defendant Lena Feiger appeals from two orders, the first of which denied her motion to dismiss the complaint for insufficiency upon its face, and the second, granted the plaintiff a stay, pending the trial of the action, of any proceedings to dispossess the plaintiff as tenant. Defendant Charles Suozzo appeals from an order which denied his motion to strike out certain paragraphs of the complaint as irrelevant, repetitious and redundant. Order denying appellant Feiger’s motion to dismiss the complaint affirmed, with ten dollars costs and disbursements. The complaint alleges, in substance, that defendants Lo Piccolo, Feiger and Suozzo, acting in concert, secured a conveyance, from the landlord of premises demised in a lease to the plaintiff, to defendant Lo Piccolo, and that Lo Piccolo is the alter ego of defendant Suozzo. It also alleges that defendant Feiger, acting at the instigation of Suozzo and on his behalf, purchased a judgment which was a lien on the demised premises senior to the plaintiff’s lease, that she caused execution to be issued thereon, that the premises were sold by the sheriff to satisfy said execution, and that she bid the premises in, acting at all times as the agent of Suozzo. The lease in question contains a covenant of quiet enjoyment. The allegations of the complaint, if established, are sufficient to entitle the plaintiff to a judgment declaring that its. lease is superior to the title acquired by defendant Feiger under the sheriff’s deed. A covenant of quiet enjoyment runs with the land. (Real Property Law, § 253, subd. 2; Hunt v. Amidon, 4 Hill 345.) Assuming, as we must from the allegations of the complaint, that both Lo Piccolo and Feiger were acting as the alter ego of defendant Suozzo, he is the owner not only of the reversion through the deed from the plaintiff’s lessor, but also under the deed given by the sheriff to defendant Feiger. As such owner he will not be permitted to disturb the quiet enjoyment of the plaintiff by means of acquiring a title superior to that of the plaintiff’s lease. (American Welding Co. v. William H. Haskell Mfg. Co., 107 A. [R. I.] 213.) Order granting the plaintiff a stay of proceedings pending trial of the action affirmed, without costs. Order denying the motion of defendant Suozzo to strike out certain allegations of the complaint affirmed, without costs. Close, P. J., Hagarty, Carswell, Johnston and Aldrich, JJ., concur.
