Royal Equities Operating LLC v Lifestyle Forms Co. Inc.

[*1] Royal Equities Operating LLC v Lifestyle Forms Co. Inc. 2013 NY Slip Op 51803(U) Decided on October 30, 2013 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 30, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
571010/12.

Royal Equities Operating LLC, Petitioner-Landlord-Respondent, - -

against

Lifestyle Forms Co. Inc., a/k/a Lifestyle Forms and Displays Co., a/k/a Lifestyle Forms, Inc. a/k/a Lifestyle Forms and Display. Inc., Respondent-Tenant, -and- Plaza Collectibles Corp., Plaza Collectibles Com Corp., Plaza Collectible Ltd., Plaza Appraisal Services, Inc., Respondents-Undertenants-Appellants, -and- "XYZ Corp." and "John/Jane Doe," Respondents-Undertenants.

Respondents-appellants appeal from an order of the Civil Court of the City of New York, New York County (Arlene P. Bluth, J.), entered August 30, 2012, which granted petitioner's cross motion for summary judgment of possession as against them and directed a hearing on the amount of use and occupancy due petitioners.

Per Curiam.

Order (Arlene P. Bluth, J.), entered August 30, 2012, affirmed, with $10 costs.

We agree that the November 6, 2009 document relied upon by the subtenants-appellants constituted an agreement to agree on terms in a future lease, and did not convey to appellants an enforceable tenancy interest in the commercial premises here at issue (see 166 Mamaroneck Ave. Corp. v 151 East Post Road Corp., 78 NY2d 88, 91 [1991]; Female Academy of the Sacred Heart v Doane Stuart School, 91 AD3d 1254, 1255 [2012]). The document contemplated further negotiation and execution of a formal written lease between the parties and provided for a limited [*2]monetary remedy "[i]n the event that landlord decides not to offer undertenant such lease." The clear and unambiguous language utilized demonstrates that the parties did not intend to be bound by any lease until it was drafted and signed (see Amcan Holdings, Inc. v Canadian Imperial Bank of Commerce, 70 AD3d 423, 426 [2010], lv denied 15 NY3d [2010]). Since no such writing was ever executed, no binding lease agreement came into effect (see Scheck v Francis, 26 NY2d 466, 469-470 [1970]).

Civil Court also properly directed a hearing on the amount of use and occupancy owed to petitioner. The lack of privity of contract between the subtenants and the paramount landlord is no bar to a cause of action for use and occupancy accruing during the holdover period (see 1133 Bldg. Corp. v Ketchum Communications, 224 AD2d 336 [1996], lv denied 89 NY2d 816 [1997]; Getty Properties Corp. v Getty Petroleum Marketing Inc., 106 AD3d 429 [2013]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 30, 2013