I & T Petroleum Inc. v Lascalia
Annotate this CaseDecided on January 26, 2009
Supreme Court, Nassau County
I & T Petroleum Inc. and Indrajeet Thakurdeen, Plaintiffs,
against
James Lascalia, Joanne Lascalia, and Delta Property Leasing Corp., Defendants.
10337/07
COUNSEL FOR PLAINTIFF
Nicholas J. Damadeo, PC
27 West Neck Road
Huntington, New York 11743
COUNSEL FOR DEFENDANT
(for Lascalia)
Alan M. Davis, Esq.
121-B West Oak Street
Amityville, New York 11701
(for Delta)
NO APPEARANCE
Leonard B. Austin, J.
Defendants, James LaScalia, Jr. and Joanne LaScalia ("LaScalias"), move to dismiss
the complaint of Plaintiffs, I & T Petroleum Inc. ("I & T") and Indrajeet Thakurdeen ("Thakurdeen"), as
asserted against them pursuant to CPLR 3211(a)(3) and (7).
BACKGROUND
Plaintiffs commenced this
action against the LaScalias and Defendant Delta Property Leasing Corp. ("Delta") alleging three
causes of action seeking the following relief: (1) money damages due to breach of the terms of the
sublease with Delta by the LaScalias; (2) a permanent injunction against the LaScalias directing them to
replace the underground gasoline storage tanks on the property with tanks equal in size and number and
able to store gasoline blended with ethanol; and (3) a permanent injunction against Delta enjoining it
from taking any action to collect rent from Plaintiffs.
According to the complaint, the LaScalias own property, located at 5220 Merrick Road,
Massapequa, New York 11758 ("Premises"), a portion of which contains a gas station.
On July 30, 2000, the LaScalias entered into a lease ("Lease") for the Premises with
Continental Petroleum Corp. ("Continental").[FN1] Paragraph 20 of the Lease affords Continental the
right to sublease and/or assign the Lease upon the prior approval of the LaScalias which would not be
unreasonably withheld. In the event of a sublet or an assignment of the Lease, Continental would remain
liable under the Lease.
On July 30, 2003, Continental and Delta entered into an Assignment and Assumption of
Lease for the Premises ("2003 Agreement"). The LaScalias acknowledged the 2003 Assignment from
Continental to Delta and gave their written consent. Continental and Delta are owned by the same
individual, Adil Bayat, who signed the 2003 Assignment on behalf of both Continental and Delta.
Delta thereafter sublet the Premises to Venket Enterprises, LLC ("Venket"), pursuant to a
"Sub-lease", dated November 13, 2003 ("2003 Sub-lease").
By an Assignment and Assumption of Lease, dated May 15, 2006, Venket, assigned the
2003 Sub-lease to Seshardi Venkatachari ("Venkatachari") ("May 2006 Assignment"). For the 2006
Assignment, there is no written consent from the LaScalias, but there is written consent from Delta. It
references the November 13, 2003 "written lease agreement" between Venket "as sublessee" and Delta
"as sublessor". The May [*2]2006 Assignment makes no reference to
the Lease with the LaScalias and incorrectly identifies Venket as "the lessor and owner of the
premises".
With respect to the subleases and assignments, Plaintiffs allege that the LaScalias retained
ownership of the underground gasoline storage tanks at the Premises and that the replacement of the
tanks is subject to the provisions of the initial Lease.
Plaintiffs allege that I & T purchased the gasoline station business located at the Premises
from Venkatachari on September 5, 2006, and that Venkatachari assigned the Sub-lease to
Thakurdeen, by an Assignment and Assumption of Lease, dated September 14, 2006 ("September
2006 Agreement"). There is no written consent from the LaScalias but there is written consent from
Delta. The September 2006 Assignment references the November 13, 2003 "written lease agreement"
but misidentifies "the assignor" as being the sublessee under the agreement when, in fact, "the assignor,"
Venkatachari, acquired his rights under the May 2006 Assignment between himself and Venket. The
September 2006 Assignment makes no reference to the prime Lease with the LaScalias.
In moving to dismiss the complaint, the LaScalias argue that they did not approve or
consent to the 2003 Sub-lease to Venket, or the subsequent assignments of the 2003 Sub-lease to
Venkatachari or to Thakurdeen.
The LaScalias argue that their required approval of any purported sublease or assignment
of the Sub-lease would have to have been in writing pursuant to General Obligations Law §5-703(2),
since the Lease between the LaScalias and Continental, which was assigned to Delta, is not scheduled
to terminate until June 30, 2010. The LaScalias allege that the purported sublease, dated November
13, 2003, and subsequent assignments of the sublease, dated May 15, 2006, and September 14,
2006, respectively, are for a period of more than one year, and as such, the required approval by the
LaScalias, would have to be in writing; otherwise, they would be void. Therefore, the LaScalias
contend that I & T and Thakurdeen are not in privity of contract with them and therefore do not have
the legal capacity to sue them. In addition, the LaScalias argue that the complaint fails to state a cause
of action against them.
In opposition to the motion, Plaintiffs argue that the LaScalias at all times had knowledge
of the existence of other tenants and never took any action against Delta or the other tenants to enforce
the provision of the Lease requiring prior written consent from them prior to any assignments or
subleases. The Lease establishes that only a portion of the Premises was actually leased out by the
LaScalias: the portion used for gasoline sales, three-fourths of the office space in the building and
shared restroom facilities. With respect to the remainder of the space at the Premises, Plaintiffs maintain
that the LaScalias operated their own business.
Moreover, I & T and Thakurdeen contend that the LaScalias were aware of a new
tenant's presence given the requirement in the "Sub-Lease" between Delta and Venket, that required
the LaScalias to be named as additional insureds on Venket's environmental insurance policy.
Furthermore, Thakurdeen, along with Mr. LaScalia and Vankatachari, was present at a hearing before
the DEC with respect to the gas tanks. Therefore, Plaintiffs contend that the LaScalias waived the
requirement for written [*3]consent and that Plaintiffs are assignees of
the Prime Lease, not subtenants, and as such are in privity with the LaScalias.
Plaintiffs contend that with respect to the replacement cost of the underground storage
tank, it is clear that the LaScalias intended future sublessees and/or assignees operating the gasoline
business on the Premises to be third-party beneficiaries of the Lease's procedure for tank replacement.
The Lease provides in ¶ 8 that the LaScalias are responsible "for all repairs and maintenance at
the demised premises, including maintenance of the gas tanks." That paragraph also provides:
In the event the gasoline storage tanks must be replaced at any time in the future and the
Landlord cannot afford to pay the full cost of the same, the Tenant shall have the option to share in the
cost of said replacement. If the cost of replacement is beyond what the parties can afford either party
may cancel this Lease.
The Sub-Lease of which the LaScalias had knowledge makes express reference to this
provision in ¶ 8:
Neither the Sublessor or the Sublessee shall be responsible for the replacement of the
gasoline storage tanks if such replacement is the result of a lawful mandate of the State of New York or
the County of Nassau . . . . The replacement will be subject to the provisions of the prime lease.
The complaint alleges that the tank must be replaced by law because they are not ethanol
compliant. The LaScalias were directed by the Department of Environmental Conservation to remove
the tank. They never did.
Thus, even if written consent of the assignment was required, Plaintiffs maintain that they
are third-party beneficiaries of the Prime Lease provision relating to tank replacement.
DISCUSSION
A.Motion to Dismiss - Legal
Standard
1.CPLR 3211(a)(3)
CPLR 3211(a)(3) permits the court to dismiss an action when the party bringing the action lacks the legal capacity to bring the action. The concept of capacity is a separate legal doctrine from the concept of standing. Community Bd. 7 of Borough of Manhattan v. Schaffer, 84 NY2d 148, 154 (1994). "Capacity... concerns a litigant's power to appear and bring its grievance before the court." Id. at 155. It is a "threshold question involving the authority of a litigant to present a grievance for judicial review". Town of Riverhead v. New York State Bd. of Real Property Services, 5 NY3d 36, 41 (2005). Artificial entities, such as business corporations, unincorporated associations and governmental entities, obtain the capacity to sue through statute or relevant enabling legislation. Community Bd. 7 of Borough of Manhattan v. Schaffer, supra at 155. 2.CPLR 3211(a)(7)
CPLR 3211(a)(7) permits the court to dismiss a complaint that fails to state a cause of action. [*4]
When deciding such a motion, the court must determine whether the plaintiff has a legally cognizable cause of action and not whether the action has been properly plead. Guggenheimer v. Ginzburg, 43 NY2d 268 (1977); and Rovello v. Orofino Realty Co., 40 NY2d 633 (1976); and Well v. Yeshiva Rambam, 300 AD2d 580 (2nd Dept. 2002); and Frank v. Daimler Chrysler Corp., 292 AD2d 118 (1st Dept. 2002). The complaint must be liberally construed, and plaintiff must be given the benefit of every favorable inference. Leon v. Martinez, supra; Sitar v. Sitar, 50 AD3d 667 (2nd Dept. 2008); Mitchell v. TAM Equities, Inc., 27 AD3d 703 (2nd Dept. 2006); and Paterno v. CYC, LLC, 8 AD3d 544 (2nd Dept. 2002). The court must also accept as true all of the facts alleged in the complaint and any factual submissions made in opposition to the motion. 511 West 232rd Street Owners Corp. v. Jennifer Realty Co., 98 NY2d 144 (2002); Sokoloff v. Harriman Estates Development Corp., 96 NY2d 409 (2001); and Alsol Enterprises, Ltd. v Premier Lincoln-Mercury, Inc., 11 AD3d 493 (2nd Dept. 2004).
If, from the facts alleged in the complaint and the inferences which can be drawn from those facts, the court determines that the pleader has a cognizable cause of action, the motion must be denied. Sokoloff v. Harriman Estates Development Corp., supra; and Stucklen v. Kabro Assocs., 18 AD3d 461 (2nd Dept. 2005).
While factual allegations contained in the complaint are deemed true, legal conclusions and facts
contradicted on the record are not entitled to a presumption of truth. In re Loukoumi, Inc., 285 AD2d
595 (2nd Dept. 2001); and Doria v. Masucci, 230 AD2d 764 (2nd Dept. 1996).
B.General Obligations Law
Section 5-703(2) of the General Obligations Law provides that: "(a) contract for the
leasing for a longer period than one year, or for the sale, of any real property, or an interest therein, is
void unless the contract or some note or memorandum thereof, expressing the consideration, is in
writing, subscribed by the party to be charged, or by his lawful agent thereunto authorized by writing."
Exceptions to the statute of frauds include waiver, estoppel, and partial performance. 310
S. Broadway Corp. v. Barrier Gas Serv., 224 AD2d 409, 410 (2nd Dept. 1996). With respect to the
exception of "waiver" a defendant waives the affirmative defense of the statute of frauds by failing to
assert it either in its answer or a motion to dismiss. Con-Solid Contr. v. Litwak Dev. Corp., 236 AD2d
437 (2nd Dept. 1997).
In the instant matter, Plaintiffs submitted a copy of the Assignment and Assumption of
Lease, between Venkatachari and Thakurdeen, dated September 14, 2006. Consequently, the writing
requirement of General Obligations Law §5-703(2) is satisfied.
In support of their motion, the LaScalias cite to Dadich v. Ilana Knitting, Inc., 208
AD2d 792, 793 (2nd Dept. 1994). In Dadich, the Court held that a purported assignment of a
five-year lease to a second tenant by a first tenant was void under the statute of frauds because the
assignment was not in writing. Id. at 793 Dadich differs from the case at bar since
Plaintiffs have produced a writing relating to the assignment of the Lease which satisfies the statute of
frauds. Similarly, Geraci v. Jenrette, 41 NY2d 660 [*5](1977) and
Oniniano v. Magier, 181 AD2d 438 (1st Dept. 1992), the two other cases cited by the LaScalias in
support of their motion, are distinguishable.
C.Waiver
A waiver is the voluntary abandonment or relinquishment of a known right which is
essentially a matter of intent which must be proved. Jefpaul Garage Corp. v. Presbyterian Hosp. in City
of New York, 61 NY2d 442, 446 (1984). While waiver may be inferred from the acceptance of rent
in some circumstances, it may not be inferred, and certainly not as a matter of law, to frustrate the
reasonable expectations of the parties embodied in a lease when they have expressly agreed otherwise.
Id.
It is well settled that acceptance of rent by a landlord from a tenant with knowledge of the
tenant's violation of the terms of the lease normally results in a waiver of the violation. Id. at
447. The option rests with the landlord to recognize the violation and terminate the tenancy and if the
landlord chooses to ignore it and accepts rent with knowledge of the violation then the acceptance
evidences his waiver and an election to hold the tenant to the lease. Id. at 447- 448. See also,
Sea Cliff Delicatessen, Inc. v. Skrepek,199 AD2d 510, 511 (2nd Dept. 1993) (landlord's acceptance
of rent checks from tenant's corporate assignee for approximately five years waived landlord's right to
consent to any assignment).
Knowledge of the subtenancy must be imputed to the landlord. Schwartz v. Certified
Management Corp., 117 AD2d 521, 522 (1st Dept. 1986). In Schwartz, the subtenant was
personally known to agents of the landlord, the managing agent and the doormen. Id. at 522.
The Schwartz Court held that the landlord's acceptance of the rent, with knowledge that
plaintiff was subletting to another, constituted a waiver of the right summarily to terminate plaintiff's
tenancy for breach of the covenant against subletting. Id. at 523.
In the instant matter, the LaScalias utilize a portion of the Premises for their own business
purposes. In addition, they share restroom facilities with the tenant. Delta, the only assignee-tenant to
whom the LaScalias gave written consent to the assignment, "subleased" the Premises to another tenant
in November 2003. Therefore, for more than five years, a tenant other than Delta has been operating
the gas station located at the Premises. In addition, the LaScalias were named as additional insureds on
Venket's insurance policy, a tenant to which the LaScalias did not consent. In light of the foregoing, the
LaScalias have waived the requirement in the Lease that they must give written consent to any
assignment or sublease. Therefore, by the LaScalias' failure to take any action during the past five year
period to remove any of the assignees and/or sub-tenants after Delta, they have waived their right to
require written approval of the assignment.
D.Distinction between an Assignment and Sublease
The essential distinction between an assignment and a sublease is . . . [i]f a lessee, by any
instrument whatever, whether reserving conditions or not, parts with his entire interest, he has made a
complete assignment; if he has transferred his entire interest in a part of the premises, he has made an
assignment pro tanto. If he retains a reversion in himself, he has made a sub-lease (citations
omitted).
[*6]
Bostonian Shoe Co. v. Wulwick Assoc., 119 AD2d
717, 718-19 (2nd Dept. 1986); and Middle Village Assoc. v. Pergament Home Centers, Inc.,
184 Misc 2d 552 (Sup. Ct. Nassau Co. 2000).
Since a sublease is an agreement between a tenant and the subtenant, with the reversionary
estate remaining in the sublessor-tenant, no contractual liability arises between the subtenant and the
landlord-lessor, and there is thus no privity of contract between the subtenant and the landlord-lessor.
Tefft v. Apex Pawnbroking & Jewelry Co., 75 AD2d 891 (2nd Dept. 1980).
"The distinction between an assignment and a subtenancy is based upon the principle of a
twofold privity existing between a landlord and tenant, a privity of contract and a privity of estate. The
first rests upon the terms of the agreement between the parties; the second, upon the interest in the real
property leased." New Amsterdam Cas. Co. v. National Union Fire Ins. Co. of Pittsburgh, 266 NY
254, 259 (1935). See also, Damaro Restaurant Group, LLC v. Gazette Realty Holdings, LLC, Misc
3d , 2008 WL 4909405 at *8 (Sup. Ct. Westchester Co. 2008). When an assignment occurs, "the
assignee becomes directly liable to the original landlord as the transfer creates a privity of estate
between the landlord and the transferee of the lease or of a part thereof." New Amsterdam Cas. Co. v.
National Union Fire Ins. Co. Of Pittsburgh, supra. When a subtenancy occurs, privity of estate
does not arise between the landlord and the transferee. Id. at 260.
The term of the Lease between Continental and the LaScalias commenced July 1, 2000
and ran until June 30, 2005. However, the Lease could be renewed at Continental's option for an
additional five year period through June 30, 2010. Continental has a first right to rent the Premises in
the event that the LaScalias continued to lease out the premises after June 30, 2010. According to the
2003 Assignment, Delta assumed full responsibility for the lease as if it signed the lease originally as the
tenant. The 2003 "Sub-lease", between Delta and Venket, demonstrates that Delta assigned all of its
rights pursuant to the 2003 Assignment to Venket. The "Sub-lease" ran through June 30, 2010, the date
that the original Lease terminated after its five year extension. Thus, this was an assignment and not a
sub-lease since Delta did not retain any rights under the Lease. Subsequent to the 2003 assignment, the
Lease was then assigned to Venkatachari, who eventually assigned his rights to Thakudeen.
Consequently, Thakudeen, as assignee, is in privity with the LaScalias and the LaScalia's motion
pursuant to CPLR 3211(a)(3) must be denied.
In light of the foregoing, the Court finds that it is not necessary to address Plaintiffs'
alternative argument alleging that they are third-party beneficiaries of the Lease.
Moreover, the allegations raised in the complaint are sufficient to assert cognizable causes
of action against the LaScalias. Thus, the LaScalia's motion pursuant to CPLR 3211(a)(7) must be
denied.
Accordingly, it is,
ORDERED, that the motion of the Defendants, James LaScalia and Joanne LaScalia, to dismiss the complaint is denied; and it is further,
ORDERED, that counsel shall appear for a status conference on March 6, 2009 at 9:30 a.m.
This constitutes the decision and order of this Court.
Dated: Mineola, New York
January 26, 2009
_____________________________
HON. LEONARD B. AUSTIN, J.S.C.
Footnotes
Footnote 1: The complaint alleged upon
information and belief that the Lease between the LaScalias and Continental was dated June 21, 2000.
However, the LaScalias annexed a copy of the Lease to their motion and the Lease is dated July 30,
2000. The Lease is only signed by Continental and not the LaScalias.
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