Opinion
No. 55 CA 23-01188
03-15-2024
IN THE MATTER OF IMAD SALEH, PETITIONER-RESPONDENT, v. 245 ONTARIO EXPRESS, INC., RESPONDENT-APPELLANT, ET AL., RESPONDENTS.
LAW OFFICE OF RALPH C. LORIGO, WEST SENECA (TODD J. ALDINGER OF COUNSEL), FOR RESPONDENT-APPELLANT. ZDARSKY, SAWICKI & AGOSTINELLI LLP, BUFFALO (DANIEL J. BOBBETT OF COUNSEL), FOR PETITIONER-RESPONDENT.
LAW OFFICE OF RALPH C. LORIGO, WEST SENECA (TODD J. ALDINGER OF COUNSEL), FOR RESPONDENT-APPELLANT.
ZDARSKY, SAWICKI & AGOSTINELLI LLP, BUFFALO (DANIEL J. BOBBETT OF COUNSEL), FOR PETITIONER-RESPONDENT.
PRESENT: LINDLEY, J.P., MONTOUR, OGDEN, AND GREENWOOD, JJ.
Appeal from an order of the Erie County Court (Suzanne Maxwell Barnes, J.), entered April 5, 2023. The order affirmed a judgment of the Buffalo City Court issued on November 28, 2022.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this summary holdover eviction proceeding, respondent appeals from an order that affirmed a judgment of Buffalo City Court granting petitioner landlord possession of a storefront that had been leased to a prime tenant and occupied by respondent pursuant to a sublease. We affirm.
"[T]ermination of the primary lease terminates a sub-lease" (64 B Venture v American Realty Co., 179 A.D.2d 374, 376 [1st Dept 1992], lv denied 79 N.Y.2d 757 [1992]; see World of Food v New York World's Fair 1964-1965 Corp., 22 A.D.2d 278, 280 [1st Dept 1964]). Further, "termination of the prime lease will ordinarily prevent the exercise of a renewal option in a sublease" (Cahill v COHI Towers Assoc., 160 A.D.2d 325, 325 [1st Dept 1990]; see Leibowitz v Bickford's Lunch Sys., 241 NY 489, 496-497 [1926]; see generally Minister, Elders & Deacons of Ref. Prot. Dutch Church of City of N.Y. v 198 Broadway, 59 N.Y.2d 170, 173 [1983]; Tiger Crane Martial Arts v Franchise Stores Realty Corp., 235 A.D.2d 994, 995 [3d Dept 1997]).
Here, there is no dispute that the prime lease between petitioner and the prime tenant terminated without the prime tenant exercising his right to renewal. Thus, even assuming, arguendo, that the sublease was validly made in accordance with the terms of the prime lease, we conclude that the sublease terminated with the prime lease. Contrary to respondent's contention, petitioner did not bind himself to the terms of the sublease by accepting rent from respondent (see Leibowitz, 241 NY at 498).