R. N. H. Management Co. v. David Silver, Inc.

24 A.D.2d 869, 264 N.Y.S.2d 324, 1965 N.Y. App. Div. LEXIS 3101

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 1, 1965
• Status: Published

Opinion

In a dispossess proceeding, the tenant appeals, by permission of the Appellate Term of the Supreme Court, from an order of said court, dated March 24, 1965, which unanimously affirmed a final order or judgment of the Civil Court, Queens County, entered October 13, 1964 upon the court’s direction of a verdict for $850 in the landlord’s favor. Order of the Appellate Term and final order or judgment of the Civil Court reversed on the law and the facts, and a new trial granted, with costs to abide the event. In our opinion, the tenant made out a prima facie case of economic duress in the making and delivery of the agreement modifying the terms of the lease between the parties. Accordingly, the court was in error in dismissing the defense for lack of proof and not submitting the issue to the jury for determination (Oleet v. Pennsylvania Exch. Bank, 285 App. Div. 411, 414-415; Kilpatrick v. Germania Life Ins. Co., 183 N. Y. 163; Elman v. Brown, Harris, Stevens, 286 App. Div. 247; 5 Williston, Contracts [rev. ed.], § 1603, p. 4495; § 1606, pp. 4501-4502; § 1618, p. 4523; § 1620, pp. 4530, 4531, note 7). Questions of fact exist as to the landlord’s good faith in making demands for increased rent in the light of the terms of the existing lease and the adequacy of any legal remedy on the part of the tenant to resist the claimed threats of eviction and criminal prosecution. At the trial the facts and circumstances leading to and concerning the making and delivery of the modification agreement should be properly subjects of proof by both parties. Beldock, P. J., Ughetta, Christ, Brennan and Hopkins, JJ., concur.