Reltron Corp. v. Voxakis Enterprises, Inc.

57 A.D.2d 134, 395 N.Y.S.2d 276, 1977 N.Y. App. Div. LEXIS 10937
CourtAppellate Division of the Supreme Court of the State of New York
DecidedApril 15, 1977
StatusPublished
Cited by17 cases

This text of 57 A.D.2d 134 (Reltron Corp. v. Voxakis Enterprises, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Reltron Corp. v. Voxakis Enterprises, Inc., 57 A.D.2d 134, 395 N.Y.S.2d 276, 1977 N.Y. App. Div. LEXIS 10937 (N.Y. Ct. App. 1977).

Opinion

Goldman, J.

Defendants Voxakis Enterprises, Inc. [Voxakis] and P. K. Management Corporation [P.K.] appeal from a judgment which declared that plaintiff-respondent Reltron [135]*135Corporation (formerly American Bowling Enterprises, Inc.) [Reltron] is entitled to use a parking area at the rear of premises at 1749-1755 East Avenue, Rochester, N.Y., in connection with Reltron’s bowling business, free and clear of any right of appellants to use the area. The judgment also enjoined appellants from such use during the term of Reltron’s lease. Appellant Voxakis is the owner of the lot at 1749-1755 East Avenue which includes the parking area, and appellant P.K. leases a building from Voxakis at that address, in which it operates a Pizza Kitchen restaurant. Reltron’s bowling business, known as Brighton Bowl, is conducted at 1717 East Avenue.

Brighton Bowl was built in 1955 by 112 South Avenue, Inc., which then owned the lots at 1717 and 1749-1755 East Avenue. The lots lie on the south side of East Avenue and are separated by a middle lot, 1743 East Avenue, which was then owned by one Howard Kessler. Parking for patrons for Brighton Bowl was available in three parking areas surrounding the establishment. The north, or front, portion of 1717 East Avenue was one such area. A second, known as the “lower parking area”, was the south, or rear, portion of 1743 East Avenue, where 112 South Avenue, Inc. had arranged for parking under a 1954 written lease with Kessler. The third parking area was the one now in dispute—namely, the south, or rear, portion of 1749-1755 East Avenue, known as the “upper parking area”.

In November, 1958 112 South Avenue, Inc. entered into a written agreement to build and lease a trading stamp redemption store to Top Value Enterprises, Inc. on the lot at 1749-1755 East Avenue. In the lease agreement, 112 South Avenue, Inc. undertook to “Provide a hard surfaced blacktopped off-the-street parking area sufficient to accommodate approximately fifty (50) cars” and to “Provide adequate entrance and exit doors to the parking area at the rear of the premises”. The lease agreement was signed on behalf of the lessor by “Fred Forman, Treas.” The building constructed for Top Value included an east wing with spaces for three smaller stores. In 1959 those spaces were leased to Lilac Laundry, Inc., Salon D’Andre, Inc., and Mildred Tuttle, respectively. In each of the three leases 112 South Avenue, as lessor, agreed “to grade and install a blacktop parking area on or before June 1, 1959, or as soon thereafter as is possible, and to permit the tenant adequate equal parking facilities with other tenants of [136]*136the building of which the demised premises are a part”. The record reveals that at least two of the three leases were signed on behalf of the lessor by "Fred Forman, Treas.”

On or about June 1, 1959 the properties at 1749-1755 East Avenue were transferred by 112 South Avenue, Inc. to Raye-Namrof, Inc. Both corporations were closely held and had some of the same principals, including members of the For-man family. Raye-Namrof, Inc. was consolidated with B. For-man Company into B. Forman Company, Inc. in October, 1961.

The lease under which Reltron claims exclusive use of the upper parking area was negotiated in 1960 between American Bowling Enterprises, Inc. (which later became Reltron Corporation) and 112 South Avenue, Inc. By a written agreement dated August 5, 1960, 112 South agreed to sell to American the equipment and other personalty of Brighton Bowl and to lease to American the premises in which the business was conducted. The agreement provided that a lease to be executed later would demise to American the upper parking area, which was described in the agreement as being "presently used as a parking area under a verbal lease from Raye-Namrof, Inc. to 112 South Avenue, Inc.” The agreement was signed on behalf of 112 South by "Fred Forman, Treas.”

By written lease dated September 1, 1960 the upper parking area was demised to American for a monthly rental of $150. The lease described the parking area as follows: "The parking lot in the rear of the building located at 1749-1755 East Avenue as now used in connection with the operation of Brighton Bowl, and being part of the premises conveyed to the landlord by deed recorded in Monroe County Clerk’s office on June 1, 1959 * * * said premises to be used for a parking lot only” (emphasis supplied). The lease named Raye-Namrof, Inc., rather than 112 South Avenue, Inc., as lessor, but it was signed on behalf of Raye-Namrof by "Fred Forman, Treas.” The lease further provided that its term would be coincident with the term of a lease dated August 5, 1960, by which 112 South Avenue, Inc. had demised the Brighton Bowl premises at 1717 East Avenue to American Bowling for 20 years with two 10-year renewal options. The latter lease was also signed on behalf of the lessor by "Fred Forman, Treas.” At the time of trial in February, 1975 Reltron, as successor to American, paid rent for Brighton Bowl to Raye-Namrof, Inc., as agent for [137]*137the shareholders of 112 South Avenue, Inc., which had been liquidated in 1964.

In 1967 Top Value entered into a new lease with B. Forman Company, Inc. (which had by then acquired title to the properties at 1749-1755 East Avenue) in which the lessor agreed "to permit Lessee, its customers, employees, and invitees to use the parking area adjoining the demised premises to the side and the rear thereof’. By a later agreement, the term of the lease was extended until May 31, 1972.

On May 8, 1972 B. Forman Company, Inc. conveyed the 1749-1755 East Avenue properties by deed to defendant Voxakis. On October 4, 1973, Top Value having failed to renew its lease, Voxakis leased the former Top Value store to P.K., which remodeled the building and opened it in February, 1974 as a Pizza Kitchen restaurant. The lease purported to grant to P.K., its customers, employees and suppliers "the right * * * to park their vehicles on the premises outlined on schedule 'A-2’ in common with other tenants of 1749-1755 East Avenue and, as to the rear parking area, in common also with American Bowling Enterprises, Inc. [now Reltron]”. "Schedule 'A’ ” was a map of the lot at 1749-1755 East Avenue which clearly showed a large blacktopped area in the rear, or south (i.e., the "upper parking area”), and a smaller blacktopped area in the northeast corner.

Customers, employees and suppliers of the Pizza Kitchen restaurant began using the upper parking area regularly. When Reltron’s protest letter in September, 1974 failed to dissuade Voxakis and his tenants from using the area, Reltron commenced this action. After trial the court issued a memorandum decision expressing the view that Reltron was obliged to share the upper parking area with the tenants of the small shops on the 1749-1755 East Avenue lot whose leasehold interests "were created prior to the date of the lease of [the upper parking area] to the plaintiff in this action”. But because plaintiff’s September 1, 1960 lease antedated the October 4, 1973 lease from Voxakis to P.K., Trial Term reasoned that "No parking privileges remained in this area for transfer to the co-defendant, P.K. Management Corporation”, so that Reltron was entitled to declaratory and injunctive relief.

We first address the question whether Voxakis was bound by the terms of the September 1, 1960 lease between Raye-Namrof, Inc. and Reltron’s predecessor. "The owner of leased [138]*138property may sell it and if there is no reservation the grant conveys the lessor’s interest in the lease” (Grover v Norton,

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Bluebook (online)
57 A.D.2d 134, 395 N.Y.S.2d 276, 1977 N.Y. App. Div. LEXIS 10937, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reltron-corp-v-voxakis-enterprises-inc-nyappdiv-1977.