106 Misc. 2d 936 | N.Y. Sup. Ct. | 1981
OPINION OF THE COURT
Although not so denominated, this appears to be a motion for summary judgment in a declaratory judgment action made prior to the joinder of issue. The defendants, for their part, do not seem to oppose such procedure feeling, apparently, as stated by their attorney, that “the issues in this motion are solely legal issues. The legal issue goes to the rights of the tenant under his lease and under Section 226B of the Real Properties [sic] Law to assign his lease without the landlord’s permission where the landlord acknowledges that his [sic presumably ‘he is’] withholding permission in an arbitrary fashion.” If the parties desire to approach the issues in summary fashion prior to joinder of issue (cf. CPLR 3212, subd [a]) and, if there are no issues of fact, there is no reason for the court not to declare the rights of the parties as demanded in the
From the undisputed facts of this case, it appears that the plaintiff Grayshaw is a lessee of an apartment under the terms of a renewed lease which will not expire until some time in 1982. He has chosen to assign his lease to the plaintiff Dorn. Under the terms of the printed provisions of the lease, a standard Real Estate Board form, the tenant agrees that “it shall not assign * * * this agreement, nor underlet, or suffer or permit the premises or any part thereof to be used by others, without the prior, written consent of the landlord in each instance.” There is nothing in this language enjoining the landlord from withholding its consent unreasonably.
Annexed to the lease and signed by the parties are two additional relevant documents, one entitled “Sublease Clause Rider” and the other “Rider to Lease”. The “Sublease Clause Rider” provides that “[t]he Landlord agrees to not unreasonably withhold approval of said subletting. Before this clause shall be binding on the Landlord, the Landlord shall have the right to issue a release to the Tenant and take back the apartment.” The “Rider to Lease” provides that the parties agree that “not withstanding anything to the contrary contained in the sublet and assignment clauses of this letter [sic] tenant’s right to sublet the premises shall be governed by Section 226-b of the Real Property Law of the State of New York”. In this rider, the landlord “reserves the right to reject any proposed subtenant and take back the apartment and release the tenant.” Clearly then the lease creates no right to assign or sublet “without landlord’s prior, written consent”, and the landlord’s consent is not subject to a test of reasonableness.
By certified mail Grayshaw notified the defendants, on October 22, 1980, of his intention to assign the premises to Dorn, offering to provide “additional information to determine if rejection of such request shall be unreasonable. I await your notice of consent or rejection.”
From the foregoing, the following inferences appear beyond doubt: Grayshaw in accordance with the statute (Real Property Law, § 226-b) sought the consent of the defendants to assign the lease to Dorn; the consent was unreasonably withheld; and Grayshaw, without the landlord’s consent, has sought to assign his lease to Dorn. The landlord, by express acknowledgment and inferentially by undertaking to offer a new lease to Dorn, has acknowledged that its refusal to approve the assignment is unreasonable.
The plaintiffs appear to rely on Kruger v Page Mgt. Co. (105 Misc 2d 14) which holds that where a landlord unreasonably withholds its consent to subletting or assignment the tenant has the option of withdrawing from the lease or assigning the lease or subletting the premises despite the absence of consent. I do not find that the facts of that case are in any material way distinguishable from the case at bar.
I do not consider relevant cases interpreting contractual clauses in which the landlord agrees not to withhold consent unreasonably.
Here, we deal with the interpretation, not of a contract
When the statute (Real Property Law, § 226-b) was first enacted (L 1975, ch 146) it provided that a landlord’s consent to subletting “shall not be unreasonably withheld. If the landlord unreasonably withholds consent for such sublease, he must agree to release the tenant from the lease or accept the sublessee.” This gave the tenant but two choices: to either have his sublessee accepted or be released from the lease. Arguably, it gave him no option to remain.
The evil which the Legislature sought to remedy was not that tenants were disabled by their leases from entering into the business of trading in apartments. The problem addressed was the arbitrary potential for abuse discussed above. Had the Legislature intended that landlords be required to consent to subleases and assignments, it need merely have said just that and nothing more. The Legislature, however, went further and provided its own remedy for the unreasonable withholding of consent: It gave the tenant the option to remain or to get out. It was never the intention of the Legislature to enable tenants to trade in leases despite their contracts to the contrary.
Unreasonable as he was, the landlord had the arbitrary right to consent or withhold consent to the assignment. The consequences of its unreasonableness is that Grayshaw may stay or Grayshaw may leave, but Dorn has no rights in the premises (Lexann Realty Co. v Deitchman, NYLJ, Dec. 18, 1980, p 11, col 3, supra; Pacer Realty Assoc. v Lasky, App Term, First Dept., Jan. 22, 1981).
It is asserted that for a period of time both Grayshaw and Dorn were excluded from the apartment by the landlord. To that extent a separate cause of action for damages may exist but it is not before me. As indicated above, however, the landlord may not exclude Grayshaw because of his attempted rogatory assignment.
Settle judgment declaring the rights of the parties in accordance with the foregoing.
. It appears that Grayshaw had previously submitted another subtenant or assignee for consideration who had been rejected by letter dated October 10, 1980. Regrettably, this correspondence has not been made available to the court.
. Obviously, the Appellate Term, First Department, is of a different view, concluding as it has that the statute was intended, among other objectives, to limit a tenant’s contractual right to sublet the premises (Lexann Realty Co. v Deitchman, NYLJ, Dec. 18, 1980, p 11, col 3).