Wiggins v. Fane

71 A.D.2d 1039, 420 N.Y.S.2d 46, 1979 N.Y. App. Div. LEXIS 13402

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 13, 1979
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court at Special Term, entered August 30, 1978 in Tompkins County, which granted a motion by plaintiff for summary judgment. Plaintiff, the lessee of a store owned by defendant in a building known as Commons West in the City of Ithaca, brought this action for a judgment declaring his right to assign his leasehold interest under a leasehold agreement between plaintiff and defendant. The lease contained a provision prohibiting the tenant from assigning the lease without the landlord’s written consent, which would not be unreasonably withheld. Plaintiff, who operated a travel agency and hotel reservation business, asked defendant to consent to the assignment of his lease to the owner of an Indian clothing and jewelry boutique who was already a tenant in defendant’s building. Defendant refused to consent to the assignment due to, among other reasons, the financial security of the proposed assignee and the fact he had been a troublesome tenant in the past. After plaintiff commenced this action contending that defendant’s refusal to consent was unreasonable, Special Term granted plaintiff’s motion for summary judgment and this appeal ensued. Under the circumstances here, summary judgment was not warranted for plaintiff on the question of whether consent was unreasonably withheld. The reasons given by defendant for withholding his consent to the proposed assignment raise questions of fact which cannot be summarily resolved. Accordingly, the order and judgment should be reversed. Judgment reversed, on the law, without costs, and motion denied. Mahoney, P. J., Greenblott, Sweeney, Kane and Staley, Jr., JJ., concur.