Triangle Props. No.7, LLC v Il Tiramisu, Ltd.

[*1] Triangle Props. No.7, LLC v Il Tiramisu, Ltd. 2005 NY Slip Op 50517(U) Decided on April 13, 2005 District Court, Nassau County Fairgrieve, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 13, 2005
District Court, Nassau County

Triangle Properties No.7, LLC, Petitioner(s),

against

Il Tiramisu, Ltd. and Aldo Antonacci, Respondent(s).



SP 1299/05

Scott Fairgrieve, J.

The parties have submitted an Agreed State of Facts for this Court to determine whether respondent Aldo Antonacci is personally liable for the amount due of $41,320.78 under the terms of the lease agreement and its extension.

Landlord, Triangle Properties #7, LLC (hereinafter referred to as Triangle) entered into a five year lease agreement with Il Tiramisu Ltd. for a wholesale bakery located at 43A Rocklyn Avenue, Lynbrook, New York, for the period from August 1, 1995 through September 30, 2000.

The Statement of Facts cite paragraphs 48 and 49 which were personally guaranteed by respondent Aldo Antonacci. Paragraphs 48 and 49 read as follows: 48.If the Tenant defaults in the payment of rent, Aldo Antonacci will be individually responsible for the payment of such rent up to the date the premises are: vacated, broom clean and possession returned to the Landlord.49.Tenant and Tenant's principals or stockholders, namely, Aldo Antonacci, individually represents that it will not introduce any chemicals into the premises in such fashion as to contaminate the premises, the waste disposal system or any portion of the property, real or personal, leased to the Tenant, or adjacent thereto. Tenant shall comply with all obligations of any environmental agency and shall hold the Landlord harmless from any claim resulting from a breach of this provision. Any liability arising pursuant to this paragraph shall survive a termination of the Lease. Tenant shall provide proof to Landlord as Landlord may reasonably request that chemical contaminants used or produced in the premises are disposed of in an environmentally safe way and in accordance with any applicable rules, regulations and ordinances of all municipal agencies having jurisdiction.

The said lease was extended by the one page document, dated September 5, 2000, entitled Lease Extension Agreement. This document reads as follows: September 5, 2000Lease Extension AgreementThis Agreement is between Triangle Properties #7, and Il Tiramisu, Ltd., Tenant, in connection with the Lease between us, dated August 8, 1995, for the premises at 43A Rocklyn Avenue, Lynbrook, NY.1.The lease term is extended to September 30, 2005.2.The base rent shall be as follows:October 1, 2000 - September 30, 2001$42,339.48/yr $3,528.29/mo3.Base annual rent shall increase by 4% over the previous year's rental on each anniversary of the term.This Agreement shall be void unless it is signed by Tenant, and returned to Landlord by September 15, 2000, along with payment of the following:September 2000 rent3,392.59July & August 2000 rent arrears126.00Repairs450.00Water106.35Total4,074.94All other terms and conditions of the Lease remain the same.AGREED & ACCEPTEDAGREED & ACCEPTEDTRIANGLE PROPERTIES #7IL TIRAMISU, LTD. /s/ (landlord's signature) /s/ Aldo Antonacci by:by:

The Agreed Statement of Facts provides for entry of judgment against Tiramisu in the amount of $41,320.78 and for a judgment of possession and warrant.

DECISION

The Lease Extension Agreement is the key document to determine whether respondent Aldo Antonacci is personally liable. The Lease Extension Agreement was executed by respondent Aldo Antonacci on behalf of Tiramisu in his representative capacity. The Extension provides that "All other terms and conditions of the Lease remain the same."

Respondent cites two cases for his argument that respondent Aldo Antonacci cannot be held personally liable because he did not execute the Lease Extension Agreement:

1.Saltzman Sign Co. v. Beck, 11 AD2d 1068, aff'd, 10 NY2d 63, 217 NYS2d 55 [1961], for the proposition that officers of a corporation should not be held personally liable unless there is a clear intent to be so bound.

2.Trump Management v. Tuberman, 163 Misc 2d 921, 622 NYS2d 851 [NY City Civ Ct 1995], wherein there was an original lease agreement for two years guaranteed by two individuals. However, the extension for an additional two years did not name the two guarantors and they didn't execute the lease agreement in their individual capacity. Under these circumstances the court refused to impose personal liability.

The Court distinguishes the foregoing cases because there was a clear intent expressed in the Lease Extension Agreement that "All other terms and conditions of the Lease remain the same." The Lease Extension Agreement strongly demonstrates that the parties carefully modified the terms of the original Lease Agreement to the extent they negotiated same. Otherwise, the parties reaffirmed their intent to have the original terms of the lease to continue in full force and effect by the phrase "All other terms and conditions of the Lease remain the same."

Even though Aldo Antonacci executed the lease extension in a representative capacity, he certainly knew that his individual liability was being extended by paragraphs 48 and 49 stated above. It would have been quite easy for the parties to exclude paragraphs 48 and 49 in the Lease Extension Agreement if they so intended.

Courts must interpret agreements by the plain language expressed and in this case nothing could be clearer that the parties intended that the personal liability of respondent Aldo Antonacci to continue.

A case somewhat on point is 29 Holding Corp. v. Diaz, 3 Misc 2d 808, 775 NYS2d 807, [Sup Ct, Bronx 2004] wherein the court held that the guarantors of the lease remained liable for the default of the tenant on the renewal lease, because explicit language in the guarantee required it. The court stated that: The court is mindful that the specter of a guarantee extending indefinitely into the [*2]future appears to place an undue and unconscionable burden on an uncompensated guarantor. In Trump Mgt. v Tuberman (163 Misc 2d 921, 922 [Civ Ct 1995]), the court recognized these same concerns, stating: "Research has failed to reveal any decisions concerning the continuing obligations of a guarantor of an initial rent-stabilized lease for renewal leases to which the guarantor is not a party. Since the Rent Stabilization Law requires a landlord to continue to offer renewal leases, adoption of plaintiff's theory in this case would require a finding that once a person guarantees an initial rent-stabilized lease, they are liable indefinitely for all renewal leases, even in the absence of an expressed agreement to be held liable." However, in keeping with the maxim that the obligations of a guarantee should be strictly construed, the Trump court concluded that the guarantee in that case should not be extended indefinitely into the future, because nothing in the language of the guarantee provided for continuing liability on the part of the guarantors.Unlike the situation presented in Trump (supra), the guarantee in this case is extremely broadly worded, and applies not only to renewals, but also if the lease is "changed or extended in any way." The guarantee by its terms extended to renewed leases, and plaintiff has established that the lease was in fact renewed in writing. (Compare 665-75 Eleventh Ave. Realty Corp. v Schlanger, 265 AD2d 270 [1st Dept 1999].) This court is thus constrained to hold that the guarantee extends to renewal leases, in accordance with the explicit terms of the guarantee. The court notes that the defendant could have ameliorated his situation, and was not fated to adhere to the terms of the guarantee for the life of the leasehold, no matter how long extended into the future, since the defendant, as an uncompensated guarantor, "may revoke and end [his] future liability by reasonable notice to the principal." (See, e.g., Levine v Segal, 256 AD2d 199, 200 [1st Dept 1998] [citations omitted].)

This Court finds that the parties in the case at bar also expressed an intent to continue the personal guarantee by the phrase "All other terms and conditions of the Lease remain the same."

CONCLUSION

Respondent Aldo Antonacci is personally liable for the sum of $41,320.78. This petitioner is authorized to enter judgment against respondent Aldo Antonacci in the sum of $41,320.78.

So Ordered:

DISTRICT COURT JUDGE

Dated:April 13, 2005 [*3]

CC:Stanley P. Amelkin, Esq.

Jeffrey Morgenstern, Esq.