30 Carmine LLC v. Depierro

7 Misc. 3d 836, 791 N.Y.S.2d 383, 2005 NY Slip Op 25093, 2005 N.Y. Misc. LEXIS 435
CourtCivil Court of the City of New York
DecidedMarch 10, 2005
StatusPublished
Cited by3 cases

This text of 7 Misc. 3d 836 (30 Carmine LLC v. Depierro) is published on Counsel Stack Legal Research, covering Civil Court of the City of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
30 Carmine LLC v. Depierro, 7 Misc. 3d 836, 791 N.Y.S.2d 383, 2005 NY Slip Op 25093, 2005 N.Y. Misc. LEXIS 435 (N.Y. Super. Ct. 2005).

Opinion

OPINION OF THE COURT

Ellen Gesmer, J.

In this commercial holdover proceeding, petitioner seeks possession of the store which respondents have occupied for the last 15 years. Petitioner claims that respondents have no lease and that petitioner has validly terminated respondents’ month-to-month tenancy. Respondents’ defense is that they have a valid lease, which was signed by Armand Chiofalo, the managing agent of petitioner’s predecessor. In reply, petitioner argues that the lease respondents rely on is void under the statute of frauds for two reasons: first, the rider to the lease, which sets out the payment terms, was not executed by Mr. Chiofalo, and second, Mr. Chiofalo did not have written authorization to sign leases for petitioner’s predecessor.

The purpose of the statute of frauds is to avoid fraud by barring the enforcement of contracts which were never made. In this case, the petitioner is seeking to do just the opposite: to use the statute to avoid a contract which was ratified and accepted by the parties to it. If the court were to accept this argument, it would be doing an injustice to the respondents by permitting the petitioner to repudiate a valid contract. The court refuses to do so, and holds that respondents have a valid lease which is in effect until April 30, 2009. Accordingly, for the reasons set forth more fully below, the court dismisses the petition.

Findings of Fact

The court makes the following findings of fact, based on the testimony and the exhibits introduced at trial.

From about 1960 to 2003, the building at 30 Carmine Street., New York, New York (the building), was owned by Cin-Cin Realty Corp. Most recently, the principal of Cin-Cin was Yvonne Wagner, who inherited the corporation from her father. Ms. Wagner’s father, and then Ms. Wagner, retained Armand Chiofalo, who did business under the name Greenwich Village [838]*838Brokers, to act as managing agent for the building. Mr. Chiofalo negotiated leases, signed leases, collected rent and paid the bills for the building on behalf of Cin-Cin. Ms. Wagner did not have a written agreement with Mr. Chiofalo concerning his management of the building and she did not know whether her father did.

In or about 1989, Stephen Depierro and Alex Del Valle (tenants or respondents) leased the west store (the store) at the building. They opened a hair salon which they have operated continuously at the store since then under the name “Hairhoppers.” Over the years, they had several written leases with Cin-Cin, each of which was signed by Mr. Chiofalo on behalf of Cin-Cin. In or about the end of 2000, Mr. Depierro and Mr. Del Valle began to negotiate a new lease with Mr. Chiofalo for the period from May 1, 2002 through April 30, 2009. After the parties negotiated the terms, Mr. Chiofalo drafted the lease, comprising a form lease and a rider setting out the rental terms, and sent it to Mr. Depierro and Mr. Del Valle. They signed both the form portion of the lease and the rider and returned them to Mr. Chiofalo, who in turn returned it to them. However, when the respondents examined the lease that Mr. Chiofalo sent back to them, they observed that he had executed the form lease but not the rider. Mr. Del Valle then took the partially executed lease to Mr. Chiofalo’s office and told Mr. Chiofalo’s secretary, Andrea, that he had brought back the lease so that Mr. Chiofalo could sign the rider, which he had neglected to sign. Andrea took the lease from Mr. Del Valle and then returned it to him with the rider signed by Mr. Chiofalo on the line above the name “Cin-Cin Realty Corp.” Mr. Del Valle returned to the store and later told Mr. Depierro that Mr. Chiofalo had signed the rider. Consistent with the rent schedule set out in the rider to the lease, respondents began paying $1,900 per month in May 2002, and Mr. Chiofalo accepted these rent payments on behalf of Cin-Cin.

In or about early 2002, Ms. Wagner decided to sell the building. Dean Ross became interested in purchasing it sometime between January and March 2002, and began negotiating with Ms. Wagner. At that time, Ms. Wagner was not aware that Mr. Chiofalo had signed a lease with respondents for the period beginning May 2002. When she first learned of the lease, during the summer or fall of 2002, she did not disavow it. Instead, she told Mr. Ross that Mr. Chiofalo had signed a lease with respondents and that she had to honor it. She also told him that [839]*839she was upset because she believed that Mr. Chiofalo could have charged a higher rent.

On or about October 9, 2002, as part of her preparation to sell the building, Ms. Wagner drew up a “set up sheet,” setting out the rents in the building. (Respondents’ exhibit B.) With respect to “Store No. 2 West,” she indicated on the set up sheet that there was a lease in effect through July 31, 2010. She also indicated that the rent for “Store No. 2 West” was $1,900, with an asterisk stating “See Attached Riders.” Ms. Wagner faxed the set up sheet to Mr. Ross, together with the rider to the lease. The copy of the rider that she faxed to Mr. Ross did not bear Mr. Chiofalo’s signature. In the months that followed, Mr. Ross did not take any steps to verify the rents listed in the set up sheet, such as checking the records at the Division of Housing and Community Renewal, asking to see the underlying leases or speaking to respondents or any of the other tenants in the building.

On January 7, 2003, Ms. Wagner, as the principal of Cin-Cin, and Mr. Ross, as the principal of 30 Carmine LLC (petitioner), signed a contract of sale (the contract) for the building and had a simultaneous closing. Schedule E to the contract was a rent roll, which set out that “St-2” was occupied by Stephen Depierro and Alex Del Valle, that their rent was $1,900 per month, subject to escalations, and that they had a security deposit of $3,000 and rental arrears of $4,200. Under the columns “Lease Start” and “Lease End,” the rent roll stated “May 1, 2002” and “April 30, 2003,” respectively. The rent roll was accompanied by a certification from Ms. Wagner that the rent roll was true and correct and that the rents were in the amounts actually being collected. At the closing, Ms. Wagner gave Mr. Ross copies of the leases for all of the occupied portions of the building, including respondents’ lease, comprising the form portion and the rider.

Shortly after the closing, Mr. Ross spoke with Mr. Del Valle, and arranged to meet with him and Mr. Depierro. Mr. Ross requested the meeting because he wanted to collect the tenants’ rent arrears. Accordingly, in mid to late January, Mr. Ross met with Mr. Depierro and Mr. Del Valle, together with Mr. Gersino, an employee of JVG Management which Mr. Ross had retained to manage the building. At that meeting, Mr. Ross showed the tenants his copy of their lease and asked if it was their lease. The copy that he showed them did not have Mr. Chiofalo’s signature. The tenants identified the document that he showed [840]*840them as their lease. Mr. Ross then told them that he had bought the lease and that they owed back rent.

Mr. Ross had several subsequent conversations with Mr. Depierro, including one on February 26, 2003 which he taped. At some point between the January meeting and February 26, 2003, Mr. Depierro decided to try to use to his advantage the fact that the copy of the rider in Mr. Ross’ possession was unsigned. Mr. Depierro believed that the tenants of the other store in the building paid a lower rent. Consequently, he told Mr. Ross falsely in their conversation on February 26 that Mr.

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Bluebook (online)
7 Misc. 3d 836, 791 N.Y.S.2d 383, 2005 NY Slip Op 25093, 2005 N.Y. Misc. LEXIS 435, Counsel Stack Legal Research, https://law.counselstack.com/opinion/30-carmine-llc-v-depierro-nycivct-2005.