29 W. 25th Street Parking Corp. v. Penn Post Parking, Inc.

Resettled judgment, Supreme Court, New York County (Bowman, J.), entered February 24,1984, which, inter alia, compelled defendant to consent to a lease assignment and to an extension of the lease term, modified, on the law and the facts, without costs or disbursements, to the extent of deleting the provision for a lease extension, and, except as thus modified, affirmed. For 18 years, under leases, the last of which expired March 31, 1980, West 25th Street operated a parking lot on defendant’s property at West 25th Street. Defendant decided not to renew 611 plaintiff’s lease and, on November 14, 1979, entered into a new lease with another corporation, 29 West, which was to take occupancy on April 1,1980. When plaintiff refused to surrender possession on March 31,1980, defendant commenced a holdover proceeding. The parties thereafter entered into a stipulation pursuant to which plaintiff agreed to vacate the premises by December 31,1980. As a result of this disposition of the holdover proceeding and by express provision of the new lease, the 10-year lease term was not to commence until January 1,1981, the date 29 West would obtain possession of the premises. In November of 1980, 29 West became a wholly owned subsidiary of plaintiff when plaintiff purchased all of its stock for $100,000. Defendant’s lease with 29 West did not prohibit such a sale, which was, as Trial Term found, lawful and proper. The lease also provided that 29 West could assign its interest in the lease with defendant’s written consent, which was “not [to] be unreasonably withheld”. On June 30, 1981, 29 West requested defendant’s permission to assign the lease to plaintiff, its corporate parent. In reality the consent, if granted, would not alter the operation or income production of the property since the parking lot was being run by the same individuals as had been running it for years. The request was made to simplify the corporate structure and produce certain favorable tax consequences. In any event, defendant refused to consent and plaintiff commenced this action to compel its consent and to modify the lease to provide for a full 10-year term commencing December 1,1980. After a nonjury trial, Trial Term granted plaintiff both aspects of the relief sought. We modify to strike the provision directing defendant to extend the lease term an additional eight months. Trial Term, after hearing all the evidence, found that defendant’s refusal to consent to the assignment was, under all the circumstances, unreasonable. It rejected, as “conclusory”, defendant’s proffered testimony of late rental payments under the expired lease by plaintiff’s principal, who was currently paying the rent promptly on behalf of 29 West and who, with or without an assignment, would be continuing to pay the rent. Apparently Trial Term properly viewed this dispute for what it was — a request to make a “paper change” in the tenancy for limited tax purposes, which request was unreasonably being opposed by defendant for personal reasons. We see no reason to disturb Trial Term’s factual findings which, made after viewing the witnesses and assessing their credibility, should be accorded “the greatest weight”. (Borne Chem. Co. v Dictrow, 83 AD2d 595, 598.) Unless it is obvious that the trial court’s findings and conclusions are against the weight of the evidence or contrary to 612 law, its determination should be affirmed. (See La Vire v State of New York, 91 AD2d 749.) The record, however, does not support Trial Term’s determination awarding plaintiff an eight-month extension of the assigned lease. In so ruling, Trial Term ignored the fact that the only reason defendant was unable to give possession to 29 West on April 1,1980 was that plaintiff was holding over. “[A] party, on whom depends a condition precedent, who actively hinders or prevents its occurrence, cannot rely on the failure of the condition.” (Schefler v Livestock & Cas. Ins. Co., 44 AD2d 811.) Accordingly, we modify to eliminate the provision awarding plaintiff an extension of the lease. Concur — Sullivan, Ross and Bloom, JJ. Kupferman, J. P., dissents in part in a memorandum and Silverman, J., dissents in a separate memorandum, as follows: