Filmways, Inc. v. 477 Madison Avenue, Inc.

Concur—Markewich, Kupferman and Steuer, JJ.; McGivern, J. P., dissents in the following memorandum: The document, alluded to in the majority opinion, presumably is the letter dated May 27, 1970, from the prime tenant, Film-ways, to its proposed sublessee, to which letter the defendant-landlord is not a party. Such a letter cannot bind the defendant-landlord nor strip it of its contractual right to deny the use of the leasehold to any sublessee unless occupancy was to be by a single tenant using the “ entire premises ” for the limited use defined by the provisions of the lease. The proposed sublease, being by its terms unauthorized, no mere letter by the tenant can compel-the-4andlord to accept it. And the defendant-landlord was justified in shrinking back from the letter’s handwritten addendum; “Notwithstanding the foregoing, as between Textron and Filmways, the terms of the sublease shall be in all respects controlling”. The mischief-making potential of this is clear when we note that actual occupancy was envisaged not by Textron alone as a single entity, but inter alia, by “ Donahue Sales Division ”, another corporation acquired by the Textron conglomerate, but which “ has not been merged with Textron, and, accordingly, remains a wholly-owned entity ”. An uncritical assent to this sublease would have trapped the landlord in the treacherous sands of a waiver, vis-a-vis its legitimate rights to limit the character and nature of the leasehold. (Woollard v. Schaffer Stores Co., 272 N. Y. 304, 316; Ireland v. Nichols, 46 N. Y. 413.) Further, the proposed sublease gratuitously conferred on Textron the right to sublet to any “ subsidiary or controlled corporation ” and to permit occupancy by its “ affiliates and subsidiaries ”, without any limitation, although the prime lease limited the use of premises to “ general and executive offices ”. Moreover, the defendant-landlord had the right under the prime lease to insist that the premises be limitedly occupied by the prime tenant’s 610 “ affiliates and subsidiaries and companies in which tenant or its affiliates and subsidiaries have a general joint venture interest ”. But the prime tenant did not receive the right to confer similar powers upon a further subtenant. Quite the contrary. In sum, regardless of the motivation of the defendant-landlord, we cannot remake the lease to accommodate the plaintiff-tenant under the prime lease. And the prime lease restrietedly allowed for a single sublease of the “ entire premises ” to one identifiable subtenant, a not unreasonable or unconscionable reservation. The sublease to Textron would welcome “ affiliates and subsidiaries ”, unnumbered, unidentified, and perhaps unborn. The landlord is within its lease when it chooses to cast a cold eye on devils unknown, and it so provided. Thus, I would reverse and grant the defendant’s cross motion for summary judgment.