Supreme Court, Appellate Division, Second Department, New York.
NORTH OAKS PHARMACY, INC., Respondent,v.NORTH SHORE TOWERS ASSOCIATES, Defendant Third-Party Plaintiff-Appellant,The Trane Company, Third-Party Defendant. (and other captions)
May 29, 1978.
Tenant sued landlord to rescind a lease on the ground of fraud in the inducement. The Supreme Court, Queens County, Martin Rodell, J., rescinded the lease agreement and awarded damages to the tenant. Landlord appealed. The Supreme Court, Appellate Division, held that the evidence was insufficient to sustain the judgment.
Reversed and new trial granted.
Landlord and Tenant 34(5)233k34(5) Most Cited Cases
In action to rescind lease on ground of fraud in inducement, evidence of fraud was insufficient to support judgment for tenant. **307 Dreyer & Traub, New York City (Brian Michael Seltzer and Samuel Kirschenbaum, New York City, of counsel), for defendant third-party plaintiff- appellant.
Jules Herman, Garden City, for respondent.
Before MARTUSCELLO, J. P., and TITONE, GULOTTA and HAWKINS, JJ.
MEMORANDUM BY THE COURT.
*728 In an action inter alia to rescind a lease on the ground of fraud in the inducement, which was consolidated with a summary proceeding pending in the Civil Court of the City of New York, the appeal is from stated portions of a judgment of the Supreme Court, Queens County, entered May 2, 1977, which, after a nonjury trial, inter alia, rescinded **308 the lease agreement in question and awarded damages to respondent. (A cross appeal by the respondent has apparently been abandoned.)
Judgment reversed, on the facts, with costs and new trial granted, as to all issues.
In our opinion, the record is too uncertain to permit the judgment to stand. There was testimony by Mr. Heller, respondent's agent, that prior to entering into its lease agreement with the appellant, the latter's agent, Mr. Antler, had represented to him that there were 1,000 signed leases in the apartment complex. The respondent then went ahead and entered into the lease for its pharmacy, as it determined that it could run a profitable business with a prospective market of 1,000 families to draw upon. However, Mr. Heller subsequently discovered from appellant's renting agent that there were actually only 200 families in residence.
In our opinion a new trial is warranted because Mr. Heller's testimony makes it unclear whether at the time Mr. Antler made the representation there were only 200 signed leases or whether there were 1,000 signed leases, with only 200 families having actually moved in. On the latter state of the facts, additional proof might be necessary in order to sustain respondent's action.
Accordingly, as the record is too uncertain for us to determine this crucial fact, a new trial must be granted (see 7 Weinstein-Korn-Miller, N.Y. Civ.Prac., par. 5522.05, and cases cited therein).
405 N.Y.S.2d 307, 63 A.D.2d 728
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