Summary
In Dadich, the Court held that a purported assignment of a five-year lease to a second tenant by a first tenant was void under the statute of frauds because the assignment was not in writing.
Summary of this case from I T Petroleum Inc. v. LascaliaOpinion
October 24, 1994
Appeal from the Supreme Court, Queens County (Milano, J.).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, the appellants' cross motion for summary judgment is granted, and the complaint is dismissed insofar as it is asserted against them.
The plaintiff alleged in his complaint that the appellants Jean Fashions, Inc. (hereinafter Jean Fashions), and Ilana Knitting, Inc. (hereinafter Ilana), were liable to him for rent payments due under the terms of a five-year lease. We find that the complaint should have been dismissed as to Jeans Fashions since a purported assignment of the lease to it by Ilana was not in writing and therefore was void under the Statute of Frauds (see, Geraci v. Jenrette, 41 N.Y.2d 660; Otiniano v. Magier, 181 A.D.2d 438; General Obligations Law § 5-703, [2]). In addition, we conclude that Ilana submitted sufficient evidence to establish the defense that its surrender of the lease was accepted by the plaintiff (see, e.g., Centurian Dev. v. Kenford Co., 60 A.D.2d 96). In view of the plaintiff's failure to dispute this evidence, there are no triable issues of fact, and summary judgment dismissing the complaint against Ilana should have been granted (see, Zuckerman v. City of New York, 49 N.Y.2d 557).
Finally, the complaint should have been dismissed as to the appellant Jean Liang as the plaintiff's allegations failed to establish a cause of action against her. Pizzuto, J.P., Santucci, Hart and Goldstein, JJ., concur.