Elias Props. Mgt., Inc. v One Half Fashion Corp.

[*1] Elias Props. Mgt., Inc. v One Half Fashion Corp. 2017 NY Slip Op 51307(U) Decided on September 29, 2017 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 29, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHELLE WESTON, J.P., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-1964 K C

Elias Properties Management, Inc., as Agent for Elias Properties Rockaway Parkway, LLC, Appellant,

against

One Half Fashion Corp., Respondent.

Certilman, Balin, Adler & Hyman, LLP (Anthony W. Cummings, Esq.), for appellant. Miller & Kahn, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), dated June 30, 2016. The order granted tenant's motion to dismiss the petition in a nonpayment summary proceeding.

ORDERED that the order is affirmed, without costs.

In this commercial nonpayment proceeding, tenant moved to dismiss the petition on the ground that the proceeding was brought by an improper party, an agent of landlord. The petition states that the petitioner is "Elias Properties Management, Inc., as Agent For Elias Properties Rockaway Parkway, LLC." The attached three-day notice describes the lease as "between Elias Properties Rockaway Parkway, LLC (Landlord) and One Half Fashion Corp. (Tenant)." The lease identifies the landlord as Elias Properties Rockaway Parkway, LLC, and is signed by Martin Elias, as president of "Elias Properties Management, Inc. as agent for owner." Petitioner, Elias Properties Management, Inc., opposed the motion, arguing that it is the landlord because it signed the lease. Petitioner appeals from an order of the Civil Court which granted tenant's motion to dismiss.

RPAPL 721 does not permit an agent to maintain a summary proceeding (see Key Bank of NY v Becker, 88 NY2d 899, 900 [1996]; Suderov v Ogle, 149 Misc 2d 906, 908 [App Term, 2d Dept, 2d & 11th Jud Dists 1991]). The lease clearly states that Elias Properties Management, [*2]Inc. is the "agent for owner," and that the landlord is Elias Properties Rockaway Parkway, LLC. When an agent acts on behalf of a disclosed principal, the agent will not be personally bound to a contract unless there is clear and explicit evidence of the agent's intention to be personally bound (see Savoy Record Co. v Cardinal Export Corp., 15 NY2d 1, 4 [1964]; Weinreb v Stinchfield, 19 AD3d 482, 483 [2005]; Leonard Holzer Assoc. v Orta, 250 AD2d 737, 737 [1998]). "When an act is within the authority of an agent, the presumption is that the agent intends to bind the principal and not himself or herself" (2A NY Jur 2d, Agency § 331). Thus, as the owner, not the agent, is bound by the lease herein, it is the owner who must bring a summary proceeding.

Accordingly, the order is affirmed.

WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 29, 2017