Goldstein v C.B.C. Holding, Inc.

[*1] Goldstein v C.B.C. Holding, Inc. 2004 NY Slip Op 50729(U) Decided on July 1, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 1, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS
PRESENT:DECIDED July 1, 2004 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS PRESENT : McCABE, P.J., RUDOLPH and ANGIOLILLO, JJ.
NO.2003-1567 S C

ALBERT M. GOLDSTEIN and ALBERT B. LEWIS, d/b/a Centerport Shopping Center, Appellants,

against

C.B.C. HOLDING, INC. d/b/a Kay's Dry Cleaners, Respondent, -and- "John Doe" and "Jane Doe", Undertenants.

Appeals by landlords on grounds of inadequacy from a decision of the District Court, Suffolk County (S. Hackeling, J.), entered December 23, 2002, awarding landlords $1,106.10, and from an order of the same court, entered August 20, 2003, upon rehearing, declaring the parties' lease void ab initio, providing that tenant could ratify the lease prospectively by paying a stated sum and otherwise adhering to the prior decision.

Appeal from decision unanimously dismissed as no appeal lies from a decision.

Order unanimously reversed without costs and matter remanded for a new trial before a different judge.

In this commercial nonpayment summary proceeding, the petition alleged that tenant had failed to make various payments, defined as additional rent under the lease, of real estate taxes, assorted late charges and legal fees. However, at trial and at a hearing held subsequent to landlord's post-trial motion, the evidence submitted centered upon the nature of a $3,212 [*2]payment of real estate taxes, stated to be a condition precedent to the effectiveness of the parties' renewal lease, a matter not a subject of the petition. Following the second hearing, the court declared the lease void ab initio.

The court below erred in declaring the lease void ab initio for "mutual mistake." Although contracts entered into under a mutual mistake of fact are generally voidable (not void ab initio, as the court below ruled) (see generally Matter of Gould v Board of Educ. of the Sewanhaka Cent. High School Dist., 81 NY2d 446, 453 [1993]), neither party objected to the lease provision requiring the $3,212 payment at any time. They merely disagreed as to whether tenant had made the payment, a matter that was in any event irrelevant to the allegations of the petition. Furthermore, to support rescission of a contract, the mistake alleged must be substantial, indicating that "the agreement as expressed, in some material respect, does not represent the 'meeting of the minds' of the parties" (id.), a criterion not met by the present misunderstanding over whether a $3,212 payment agreed to in a ten-year commercial lease represented past or future indebtedness. Moreover, neither party even sought to be relieved from the lease; to the
contrary, both operated under the assumption that the lease was effective and binding upon them.

On the state of the record, it is not possible for this court to determine what, if anything, tenant may owe landlord, especially as the parties' testimony focused on disputed amounts that did not correlate to the allegations of the petition. Therefore, the matter is remanded for a new trial.
Decision Date: July 01, 2004