709 Rte. 52, Inc. v DelCastillo

[*1] 709 Rte. 52, Inc. v DelCastillo 2009 NY Slip Op 51341(U) [24 Misc 3d 130(A)] Decided on June 29, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 29, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., TANENBAUM and SCHEINKMAN, JJ
2007-1364 D C.

709 Route 52, Inc., Respondent,

against

Michael DelCastillo d/b/a MIKE'S AUTO ACCESSORIES, Tenant, -and- VICKI CALDER, Appellant.

Appeal from a final judgment of the Justice Court of the Town of Fishkill, Dutchess County (Harold D. Epstein, J.), entered December 19, 2006. The final judgment, after a nonjury trial, awarded landlord the sum of $7,750 against Vicki Calder in a nonpayment summary proceeding.

Final judgment reversed without costs and petition, insofar as it is against Vicki Calder, dismissed.

In this commercial nonpayment proceeding, landlord seeks to collect rent pursuant to a lease agreement naming appellant Vicki Calder as a cotenant. After the proceeding was commenced, landlord and the other cotenant named in the lease entered into a stipulation of settlement. Following a nonjury trial, the Justice Court awarded landlord $7,750 against appellant. We reverse.

As a general rule, a written lease is not enforceable absent delivery to the party to be charged (see 219 Broadway Corp. v Alexander's, Inc., 46 NY2d 506, 511-512 [1979]; Dlugosz v O'Brien, 36 AD3d 1035 [2007]; 71 Main St. Assoc. v Grosso, 246 AD2d 776 [1998]). "By requiring delivery, the law facilitates the true expectations of the parties by ensuring that the interest in the property is not conveyed until that moment when the parties so intend" (219 [*2]Broadway Corp., 46 NY2d at 512). In the instant proceeding, it is undisputed that there was no delivery of the written lease to appellant. Moreover, the evidence at trial showed that landlord never provided appellant with keys to the premises, and appellant never took possession of the premises or paid landlord rent.

As the lease never became effective against appellant, landlord had no basis to seek rent from appellant pursuant to that lease. Therefore, the final judgment against appellant is reversed and the petition dismissed as against appellant.

The decision and order of this court entered herein on June 2, 2009 are hereby recalled and vacated (see motion decided simultaneously herewith).

Rudolph, P.J., and Tanenbaum, J., concur.

Scheinkman, J., taking no part.
Decision Date: June 29, 2009