25 Misc. 2d 500 | N.Y. Sup. Ct. | 1960
Defendant Neustein moves for dismissal of each cause of action for legal insufficiency. The complaint contains six causes of action. The fifth and sixth have been discontinued. Only the third and fourth causes are asserted against the moving defendant.
Plaintiff and defendant The LPN 1st Ave. Corp. are the landlord and tenant, respectively, The lease contains a provision
A contract of sale dated September 2, 1959, was made with the defendant Fine. By letter of September 11, 1959, plaintiff did notify the defendants LPN and Neustein of the contract and enclosed a copy thereof. Neustein, as attorney for LPN, stated in his letter of October 14, 1959:, “ I have advised the tenant that a bona fide offer, within the terms of the lease, has not been received by you and that the copy of the paper mailed to the tenant is not evidence of such offer. I have also advised the tenant that until a bona fide offer is received by you and evidence of such offer is submitted, the tenant is under no obligation to exercise its option to accept the offer for the sale of the premises, nor until that time, may you terminate the lease pursuant to Paragraph 23. At such time as you do receive a bona fide offer and evidence thereof is submitted, the tenant shall have the right to accept or reject the same. I hereby notify you on behalf of the tenant that any attempt on your part to terminate the lease, based upon your letter of September 11, 1959 and the
Upon the face of the third cause of action, at least, the tenant’s letter has cast a cloud upon title and the tenant’s action has had the ostensible effect of destroying the landlord’s right to sell and thereupon to cancel the lease.
Whether the tenant’s activities may be embraced within the guarantee to pay damage for nonperformance must await trial and determination. Even if plaintiff does not secure the declaration it seeks, nevertheless, it is entitled to have the guarantor in the action so that the decree may be binding upon him. More specifically, there remains for trial and determination not only the question whether the alleged contract of sale is bona fide, but whether the tenant, in exercising its option to accept or reject the offer to purchase, acted in bad faith in respect to the affirmative action which it did take and whether thereby is involved nonperformance of the option agreement.
With respect to the fourth cause of action, however, the guarantor is in no way a party or a claimed party in interest. No cause of action to quiet title is asserted against him.
The motion is granted to the extent of dismissing the fourth cause of action, as to. him, and it is denied as to the third cause of action.