709 Rte. 52, Inc. v DelCastillo

[*1] 709 Rte. 52, Inc. v DelCastillo 2010 NY Slip Op 50581(U) [27 Misc 3d 127(A)] Decided on March 31, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 31, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MOLIA, J.P., LaCAVA and IANNACCI, 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.

ORDERED that the final judgment is reversed without costs and the petition, insofar as it is against Vicki Calder, is dismissed.

In this commercial nonpayment proceeding, landlord seeks to collect rent pursuant to a lease agreement naming appellant Vicki Calder and another as cotenants. 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 granted judgment awarding landlord possession and the sum of $7,750 against appellant. We reverse.

As a general rule, a written lease is not enforceable absent delivery (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 Broadway Corp., 46 NY2d at 512). In the instant proceeding, appellant claims that she and the cotenant were to operate separate businesses in the premises; that she signed the lease with the understanding that all the parties to [*2]the lease were to sign it before a notary; and that, upon learning that the cotenant would not be signing the lease before a notary, she promptly notified landlord that she would not be a party to the lease. It is undisputed that there was no actual delivery of the written lease to appellant, and the evidence at trial showed that landlord never provided appellant with keys to the premises and that appellant never took possession of the premises or paid landlord rent (cf. Wooster 76 LLC v Ghatanfard, 68 AD3d 480 [2009]). Contrary to landlord's claim on appeal, in the circumstances of this case, actual delivery of the lease to appellant's cotenant did not constitute delivery of the lease so as to bind appellant.

As the lease never became effective against appellant and as landlord showed no other basis to recover rent from appellant, the final judgment against appellant must be reversed and the petition dismissed as against appellant.

Molia, J.P., LaCava and Iannacci, JJ., concur.
Decision Date: March 31, 2010