Summary
holding that the tenant did not abandon the lease where it "was merely readying the premises in preparation for the occupancy by the proposed assignee"
Summary of this case from Aris Vision Institute, Inc. v. Wasatch Property Management, Inc.Opinion
May 18, 1987
Appeal from the Supreme Court, Nassau County (Balletta, J.).
Ordered that the orders are affirmed, with one bill of costs.
The evidence adduced at the hearing demonstrated that, in refusing consent to an assignment of the lease, the defendant's general manager had relied primarily upon his subjective belief that a representative of the proposed assignee should have contacted him to discuss its financial status prior to making the application to assign. Such subjective concerns and personal desires cannot play a role in a landlord's decision to withhold its consent to an assignment of a lease, and the hearing court properly held that the defendant had unreasonably withheld its consent (see, American Book Co. v. Yeshiva Univ. Dev. Found., 59 Misc.2d 31; Kruger v. Page Mgt. Co., 105 Misc.2d 14, appeal dismissed 80 A.D.2d 525).
Inasmuch as the proposed assignee had bound itself to each and every provision of the prime lease, and its financial status was secure, the hearing court properly directed the defendant to give its consent to the assignment (see, Filmways, Inc. v. 477 Madison Ave., 36 A.D.2d 609, affd 30 N.Y.2d 597; Kruger v. Page Mgt. Co., supra). In addition, the hearing court properly determined that the plaintiff had not abandoned the leasehold so as to be in default of the lease. The evidence adduced revealed that the plaintiff was merely readying the premises in preparation for the occupancy by the proposed assignee (cf., Kottler v. New York Bargain House, 242 N.Y. 28).
Furthermore, the court properly denied the defendant's motion, in effect, for renewal since the proffered insurance report did not refute the hearing court's original conclusion that the plaintiff had emptied the premises in preparation for the assignee.
Finally, we have examined the defendant's remaining contentions and find them to be without merit. Mangano, J.P., Eiber, Kunzeman and Harwood, JJ., concur.