Kreth v Lucchetti

[*1] Kreth v Lucchetti 2007 NY Slip Op 50730(U) [15 Misc 3d 134(A)] Decided on April 6, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 6, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., McCABE and TANENBAUM, JJ
2006-860 S C.

Ronald Kreth & Kathleen Kreth, Respondents,

against

Charles Lucchetti, Appellant, -and- JANE DOE AND ALL OTHER PERSONS LIVING WITH OR THRU HIM AT 18 FERN AVE. EAST ISLIP, N.Y., Undertenants, -and- 18 FERN AVENUE, INC., Respondent.

Appeals from a decision, dated August 9, 2005, and from a final judgment, entered September 19, 2005, of the District Court of Suffolk County, Fifth District (James P. Flanagan, J.). The decision and final judgment, after a nonjury trial, awarded landlord possession and, as against appellant Charles Lucchetti, the principal sum of $25,000, in a nonpayment summary proceeding.

Appeal from decision dismissed. No appeal lies from a decision (see UDCA 1702).

Final judgment reversed without costs and petition dismissed.

In this nonpayment proceeding commenced in May 2005, landlords sought rent arrears from October 2004, alleging that appellant Charles Lucchetti was the tenant in possession. [*2]Appellant acknowledged that the rent had not been paid, but asserted, both in his answer and at trial, that the proper respondent was a corporation,
18 Fern Avenue, Inc., which had not been served, of which corporation he was president. Although the corporation was added as a party during trial, the court, after trial, awarded landlords possession but only entered judgment for rent due against Lucchetti. The court found that Lucchetti had signed the lease in his individual capacity and was personally liable for the rent but that landlord had "failed to prove a prima facie case" against the corporation.

In our view, the proof at trial established that 18 Fern Avenue, Inc. is the tenant, not Lucchetti. Although the lease was signed by Lucchetti with the word "tenant" beneath his signature, no other proof was introduced tending to show that Lucchetti had agreed to be the tenant. The evidence showed that pending completion of landlords' proposed sale of the subject premises to 18 Fern Avenue, Inc., the instant lease was executed on January 18, 2002 providing that "18 Fern Inc., [sic] agrees to pay the amount of $2,500 per month," and all rent was subsequently paid by checks issued by the corporation. Moreover, the lease further provided "that the relationships of Vendor/Vendee and Lessor/Lessee shall co-exist." The contract of sale names 18 Fern Avenue, Inc. as the buyer and is signed "18 Fern Ave, Inc. C. Lucchetti Pres." Reading the lease and contract of sale together, it is clear that the corporation was in possession as vendee and as tenant, not Lucchetti (see Stylianides v De Lorean Motor Co., 115 Misc 2d 861 [1982]; 2A NY Jur 2d, Agency §§ 322, 323; see generally Ell Dee Clothing Co. v Marsh, 247 NY 392 [1928]).

A nonpayment proceeding may be maintained only to collect "rent," not other liabilities (RPAPL 711 [2]; see e.g. Matter of Bedford Gardens Co. v Silberstein, 269 AD2d 445 [2000]; Matter of Binghamtom Hous. Auth. v Douglas, 217 AD2d 897 [1995]; 2 Dolan, Rasch's Landlord and Tenant — Summary Proceedings § 32:9 [4th ed]). "Rent as such comes only from the land demised, and arises solely from the relationship of landlord and tenant" (Jacob Ruppert Realty Corp. v Bank of United States, 156 Misc 93, 98 [1935]; see Park Prop. Dev. v Santos, 1 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2003]; 1 Dolan, Rasch's Landlord and Tenant — Summary Proceedings § 12:1 [4th ed]). In the absence of a landlord-tenant relationship between
landlord and Lucchetti, no award of "rent" can be made against him. Since the final judgment did not award rent against the corporation, and landlords have not cross-appealed therefrom, the petition must be dismissed.

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: April 6, 2007