Vassilakos v Elizalde
Annotate this CaseDecided on June 15, 2007
Civil Court of the City of New York, New York County
Nicholas Vassilakos, Petitioner,
against
Miriam Elizalde, Respondent.
L & T104549/2006
Andrew Georgakopoulous, Esq.
Belkin Burden Wenig & Goldman, LLP
Attorneys for Petitioner
270 Madison Avenue
New York, NY 10016
Ms. Miriam Elizalde,
Respondent Pro Se
1726 Second Avenue, Apt. # 4
New York, NY 10128
David B. Cohen, J.
This licensee holdover proceeding was commenced on the theory that the tenant of record surrendered her rights and the respondent is a licensee remaining in the apartment.
I. Introduction
A.Parties
The respondent Miriam Elizalde is the sister of the tenant of record, Emelia Elizalde, who was the lessee of apartment No. 4 (the "apartment" or "premises"), a rent stabilized unit at 1726 Second Avenue, New York, New York (the "building"). Nicholas Vassilakos is the owner-managing agent of the premises.
B.Factual Background
Emelia Elizalde began living in the apartment pursuant to a written lease in 1992. Sometime around 2001, respondent moved into the apartment with her sister Emelia. After moving out on two occasions, respondent moved back into the apartment at the end of May 2004. On or about September 20, 2004, petitioner and the tenant of record entered into a two-year renewal lease for the apartment, commencing on November 1, 2004 and expiring on October 30, 2006. Thereafter, the tenant of record moved to Florida.
In May 2006, petitioner, in a handwritten document, offered to lease the apartment to respondent, upon condition that Emelia Elizalde surrender the apartment. The offer stated, "if agreed, please sign [sic] return by Friday, 5/12/06." In a letter dated May 21, 2006, respondent advised petitioner that she was accepting his offer. In a notarized letter addressed to the petitioner dated August 15, 2006, Emelia Elizalde "surrendered" her rights to the apartment. Paragraph one of the surrender letter states "[t]his is the statement that you requested from me in order to lease the apartment # 4 . . . to my sister Miriam Elizalde upon surrender of the existing lease on [sic] my name" (emphasis added). Paragraph two says "I, Emelia Elizalde (current lease holder) agree to surrender the lease of the apartment # 4" at the subject building.
C.Procedural History
Petitioner terminated respondent's license to occupy the apartment by service of a Ten Day Notice to Quit on November 15, 2006. When respondent did not surrender possession, petitioner [*2]commenced this holdover proceeding by Notice of Petition and Petition dated December 5, 2006, claiming the tenant of record had surrendered her lease and, therefore, respondent's license expired. Since the commencement of this proceeding, petitioner has not accepted rent from either respondent or her sister, and respondent has not relinquished possession of the apartment.
Respondent claims that she has been residing at the apartment, as her primary residence, for over two years, qualifies for familial succession rights, and is entitled to be named as a tenant on the renewal lease, pursuant to Rent Stabilization Code (9 NYCRR) § 2523.5 (b) (1).[FN1] She also claims that the petitioner's agreement to provide her with a lease to the apartment, upon her sister Emelia's surrender, should be enforced.
II. Trial Testimony and Evidence
There is no dispute between the parties that in early May 2006, petitioner made a written offer with an acceptance date of May 12, 2006 to lease the apartment to respondent if the tenant of record surrendered; that in a letter dated May 21, 2006, respondent purported to accept the petitioner's offer; and that in a notarized letter addressed to petitioner, dated August 15, 2006, the tenant of record "surrendered" her rights to the apartment.
A.Petitioner's Claims
Petitioner testified that tenant of record, Emelia Elizalde, took occupancy of the apartment in 1992 pursuant to a written lease, most recently renewed on August 4, 2004 for a two-year term through October 30, 2006. Petitioner acknowledged having telephoned the tenant of record in Florida to tell her that if she surrendered her lease, he would lease the apartment to respondent. Petitioner asserted that he intended to lease the apartment to respondent and even had a lease drawn up, but later decided respondent would not make a good tenant. Petitioner alleged that the apartment had been "destroyed" but acknowledged that the rent had been paid. Petitioner also testified to a conversation with respondent in November 2004, in which she allegedly told him that she lived on East 88th Street.
B.Respondent's Claims
Respondent testified that she first moved into the apartment with her sister Emelia in April 2001 and has remained in continuous occupancy of the apartment with the exception of two interruptions. In August 2001, respondent moved in with another sister, Guadalupe, in an apartment at 265 East 78th Street, New York, New York, for one year, and then returned to the subject apartment on or about September 2002.[FN2] In January 2004, respondent moved to another apartment at 404 East 88th Street, New York, New York, pursuant to a one-year lease, but lived there for only about four or five months before returning to the subject apartment to live with her sister Emelia at the end of May 2004.
Respondent testified that on or about October 2005, her sister Emelia moved to Florida where she got a job and stayed at the home of another sister, Norma. According to respondent, [*3]Emelia, who travels frequently, returned to the New York City apartment for two weeks in early 2006 and, at that time, intended to return permanently to the apartment.
Respondent also testified that petitioner advised her one day before the lease was about to expire that, because respondent had accepted his offer "late," she had to vacate the apartment.
Elicier Zarate, called by respondent, testified that, to his knowledge, respondent had been living at the apartment for over two years.
III.Legal Analysis
A court "must . . . accord the words of [a] contract their 'fair and reasonable meaning'" (Sutton v E. River Sav. Bank, 55 NY2d 550, 555 [1982], quoting Heller v Pope, 250 NY 132, 135 [1928]). Petitioner's written offer stated that the offer must be accepted by May 12, 2006. When a date is specified in an offer "its duration automatically terminates by the lapse of time specified therein" (Textron, Inc. v Parkview Equities, Inc., 159 AD2d 989 [4th Dept 1990]). As respondent's letter of acceptance was sent on May 21, 2006, after the offer terminated, no contract was entered into between the parties at that time.
A late acceptance "is merely a counteroffer which must in turn be accepted by the original offeror to create a contract" (22 W. Main St. Inc. v Boguszewski, 34 AD2d 358, 360 [4th Dept 1970]; 1 Williston, Contracts §§ 92, 93 [3d ed]). "Although, generally, intent to accept an offer may not be inferred from silence, a party's silence will be deemed an acquiescence where he or she is under . . . a duty to speak" (Russell v Raynes Assocs. LP, 166 AD2d 6, 15 [1st Dept 1991]). Such a duty arises when "conduct, accompanied by silence, would be deceptive and beguiling" (Brennan v National Equit. Inv. Co., 247 NY 486, 490 [1928]) and failure to speak therefore misleads the other party (Josephine & Anthony Corp. v Horowitz, 58 AD2d 643 [2d Dept 1977]; see Russell, 166 AD2d at 15). "Such a duty may be created by a course of conduct" (Russell, 166 AD2d at 15, quoting Matter of Catz American Sales Corp. v Holleb & Co., 272 App Div 689 [1st Dept 1947], affd 298 NY 504 [1948]).
Respondent was obviously misled by petitioner's silence because respondent thereafter had her sister surrender her lease so that she could obtain a lease in her own name. Petitioner's acceptance of the tenant of record's surrender of August 15, 2006, only further misled the respondent into thinking that the counteroffer had been accepted. As such, respondent has demonstrated that she "reasonably believed" that petitioner had accepted her counteroffer (Russell, 166 AD2d at 16; see Restatement [Second] of Contracts § 69). Petitioner's own statement that "Emilia [sic] Elizalde surrendered her rights to the Apartment" in the Ten Day Notice To Quitevinces his acceptance of the surrender agreement, and thereby, his prior acceptance of respondent's counteroffer. Thus, the parties entered into a binding contract under which petitioner agreed to give respondent a lease in her name upon the tenant of record's surrender. As such, she cannot be evicted as a licensee.
Even if there were no contract between petitioner and respondent, petitioner still cannot prevail because the tenant of record did not surrender. Paragraph one of the "surrender" by Emelia Elizalde says that her surrender is conditioned upon the petitioner granting a lease to the respondent. Paragraph two is a statement of surrender. When interpreting a contract "the aim is a practical interpretation of the expression of the parties to the end that there be a 'realization of [their] reasonable expectations'" (Sutton, 55 NY2d at 555, quoting Heller v Pope, 250 NY at 135). The "surrender" expressly made the grant of the lease of the apartment to the respondent a condition precedent to the surrender of the premises (see Su Mei, Inc. v Kudo, 302 AD2d 740, 741 [3d Dept 2003]; Trustees of Columbia University in the City of New York v Kalvin, 133 Misc 270, 272 [Sup Ct, NY County 1928], affd 226 AD 775 [1st Dept 1929] ). [*4]
"It is well settled that a written agreement . . . must be enforced according to the plain meaning of the terms" (Masters v 14-22 Leonard Street Assocs. LLC., 11 AD3d 380, 382 [1st Dept 2004], citing Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470, 475 [2004]). The terms of the "surrender," plainly read, manifest an intent to condition the surrender upon the tender of a valid lease to respondent it states that surrender is "in order to" lease apartment # 4 to respondent. Where a condition goes to the formation or existence of a contract itself, "no contract arises 'unless and until the condition occurs'" (Oppenheimer & Co., Inc. v Oppenheim, Appel, Dixon & Co., 86 NY2d 685, 690 [1995], quoting Calamari and Perillo, Contracts § 11-5, at 440 [3d ed]). The petitioner failed to grant the lease to the apartment to respondent, thereby failing to meet the only condition of the tenant of record's agreement to surrender possession. Therefore, no surrender occurred.
Absent a surrender of possession by the tenant of record, the lessor must first obtain a judgment against the lessee pursuant to RPAPL 711 and "may not proceed directly against the undertenant, whether a licensee, subtenant or occupant" pursuant to RPAPL 713 (170 West 85th St. Tenants Assoc. v Cruz, 173 AD2d 338, 339 [1st Dept 1991] citing 100 West 72nd St. Assoc. v Murphy, 144 Misc 2d 1036, 1039 [Civ Ct, NY County 1989]; see RPAPL 713 [7]). Since no surrender took place, Emelia Elizalde remains the tenant of record.
IV. Conclusions
For the reasons set forth herein, petitioner's claim to possession of the subject apartment pursuant to RPAPL 713 cannot be maintained and this proceeding is dismissed.
The clerk is directed to mail a copy of this decision to all parties.
This constitutes the decision and order of this court.
Dated:June 15, 2007
New York, NY
_________________________________DAVID B. COHEN, J.H.C.
TO:
Andrew Georgakopoulous, Esq.
Belkin Burden Wenig & Goldman, LLP
Attorneys for Petitioner
270 Madison Avenue
New York, NY 10016
Ms. Miriam Elizalde,
Respondent Pro Se
1726 Second Avenue, Apt. # 4
New York, NY 10128
Footnotes
Footnote 1: Rent Stabilization Code (9 NYCRR) § 2523.5 (b) (1) provides that a member of a tenant's family, who has resided with the tenant in the housing accommodation as a primary resident for a period of not less than two years, shall be entitled to be named as tenant on a renewal lease.
Footnote 2: Respondent testified that the East 78th Street apartment was about 12 blocks from the subject premises and that the move was for her son's school registration.
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