Levchuk v. BrikszaLevchuk v. Briksza
OPINION OF THE COURT
This hоldover proceeding involves the questions of what is an enforceable lease or sublease and what are the rights of a subtenant in the event of the termination of the prime lease.
The petitioner, Barbara Levchuk, seeks a final judgment in her favor awarding her possession of the subject residential apartment and the issuance of a warrant of eviction to remove, the respondent, Rudolph Briksza.
According to the amended petition the respondent was licensed by the petitioner to enter into possession of the apartment for the period commencing October 26,1983 and terminating on November 30, 1983. It is further alleged that the respondent continues in possession of the premises after the expiration of said term, without legal right and without pеrmission of the petitioner.
REQUISITES FOR A VALID LEASE
According to subdivision 2 of section 5-703 of the General Obligations Law “[a] contract for the leasing for a longer pеriod than one year * * * of any real property * * * is void, unless the contract or some note or memorandum thereof, expressing the consideratiоn, is in writing [and] subscribed by the party to be charged”. The respondent offered a document, signed by the petitioner and admitted into evidence which reads as fоllows: “I, Barbara Levchuk, have agreed to sublet my apartment at 428 E. 85 Street, Apartment IB to Rudy Briksza from June 1, 1983 to June 1,1986. The agreement is that he will pay me the appropriate rent plus $100 аdditional each month by the first of each month.” (Emphasis added.) “It is necessary to the formation of a lease that all the essentials of a contraсt be present”. (1 Rasch, NY Landlord & Tenant Summary Proceedings, [2d ed], § 17, p 22.) These essentials include the parties to the lease, the subject matter of the leаse, the term during which the lease is to be in effect, and the rent that is required under the lease. The writing referred to above uses the term “appropriatе rent”. According to Rasch (op. cit., vol 1, § 50, p 68) “[a]n agreement for a lease to be enforceable, must, as all contracts, be certain in its terms”. Thus, the initial detеrmination to be made is whether or not the term “appropriate rent” is sufficiently certain so that an enforceable lease may be said to exist. The term “appropriate rent” is at the least somewhat uncertain in its meaning absent reference to the surrounding circumstances of its use.
ADMISSIBILITY OF PAROL EVIDENCE
The paroi evidence rule bars the admission into evidence of conversations, negotiations and agreements made by the parties prior to or cоntemporaneously with the execution of a written lease for the purpose of varying or contradicting what would otherwise be an unambiguous written leаse. (1 Rasch, op. cit., § 119, p 180.) However an exception to the paroi evidence rule exists where the lease is found to be ambiguous as to the meaning of the language employed. Extrinsic evidence is admissible in this limited situation to ascertain the meaning intended by the parties. (1 Rasch, op. cit., § 123, p 186.) Thus, paroi evidence is аdmissible in the present case for the purpose of
THE CONTENTIONS OF THE PARTIES
It is the pеtitioner’s contention that the writing offered by the respondent and entered into evidence is not a valid lease. However, the petitioner gratuitously tеstified as to the meaning of the term “appropriate rent” as used in the writing. The petitioner stated without objection that the “appropriate rеnt” agreed upon was her cost of carrying the apartment, be it rent, maintenance or cooperative loan amortization, to which would bе added the sum of $100.
The respondent contends that the term “appropriate rent” meant the petitioner’s stabilized rent. The respondent asserts that the stabilized rent was to remain the base rent that he would pay even after the demised premises were converted to cooperative ownership, despite the fact that the petitioner’s ’ mortgage and maintenance payments would greatly exceed the stabilized rent plus the $100 that he would рay.
THE SUBLEASE IS VALID
The court concludes that there was a valid sublease and that the “appropriate rent” was petitioner’s “cost”, i.e., rent or as appears below maintenance and amortization.
At the time that the sublease was entered into the petitioner had not yet purchased the subject apartment. The apartment was then subject to rent stabilization. Given the regulatory status of the apartment prior to conversion it is a simple task to dеtermine the “appropriate rent” for the preconversion period. The “appropriate rent” would be the stabilized rent. However, the tаsk of determining the “appropriate rent” after conversion to cooperative ownership and deregulation is somewhat more difficult, but sill asсertainable.
THE SUBTENANCY AND PRIME TENANCY
Once the apartment was converted to cooperative ownership not only was the regulatory status of the apartment changed but the very nature of the petitioner’s tenancy and concomitantly, the respondent’s subtenancy, were altered as well. Prior to the conversion the petitioner was a tenant who sublet her apartment to the respondent. The petitioner was the prime tenantsublessor and the respondеnt was the undertenant-sublessee. “The basic rule is that a sublease is dependent on and limited by the terms and conditions of the main lease from which it is carved.” (Precision Dynamics Corp. v Retailers Representatives,
However, in this case, given the written sublease agreement and the extrinsic evidence regarding the circumstances surrounding the execution of the same, it is clеar that it was within the contemplation of the parties that their agreement would survive the conversion of the apartment to cooperativе ownership. The relationship existing after cooperative conversion is ° that of landlord and tenant, with the petitioner former sublessor being the landlоrd and the respondent former sublessee being the tenant. The “appropriate rent” simply refers to what is now the “appropriate rent”. The “appropriate rent” is the petitioner’s cost of carrying the apartment. Prior to conversion it was her rent as a tenant in a rent-stabilized apartment. Aftеr conversion it is maintenance and cooperative loan amortization (to which is added $100).
Accordingly, judgment for the respondent dismissing the petition. Petitioner’s remedy if the “appropriate rent” is not paid is to commence a nonpayment proceeding. Respondent’s lease will expire, by its terms, on June 1, 1986.