Some of the top-rated television programs are "reality-based" in nature and offer participants millions in cash prizes. Despite this trend, it's probably best to leave the risk-taking and game-playing to the pre-screened contestants who often have little to lose.
By way of example, here's a case involving a landlord and tenant who played a bit "fast and loose" with their obligations under a commercial lease agreement.
In Hip Hop Fries Shop Inc. v. Gibbons Realty Corp., a ten-year commercial lease (beginning September 1, 1999 and ending August 31, 2009) identified Hip Hop Fries Shop, Paul Boritzer and Mario Sanchez as "Tenant" of store space located at 2459 Eighth Avenue. During the course of its lease, Hip Hop Fries alleged that it had been wrongfully evicted from its premises and started a special proceeding in the New York County Civil Court to be restored to possession.
In response to the eviction and restoration claim, the owner contended that Hip Hop had "skipped" -- that is, sold or assigned its lease to an individual named Jose Polanco and that Polanco had surrendered the space to the landlord, on or about January 14, 2004. In February 2004, the landlord and a gentleman named Hector Cruz reportedly entered into another lease for the same premises for the period January 1, 2004 and ending December 31, 2008.
According to the Civil Court's decision, in 2002 or 2003 a Spanish restaurant was established at the premises and operated by Mr. Polanco, who is said to have later advised the landlord that he had paid the tenant for the lease and had the authority to surrender same.*
Yet, during the course of Hip Hop's illegal lock-out case, Polanco flip-flopped and submitted conflicting affidavits. In one document, Polanco averred that he was the "successor-in-interest to Hip Hop Fries Shop's previous owner, that he purchased the business, and that on January 14, 2004 he voluntarily surrendered the subject premises to the landlord." While in another affidavit, dated just two days later, Polanco represented that any purported surrender was involuntary and made under duress.
Noting that it was the landlord's burden of proof to establish that a surrender had occurred, and displeased with the fact that Polanco was not produced to testify at the hearing, the court found the landlord's explanations unpersuasive and characterized the weakness of the owner's position as follows:
The landlord's and Mr. Cruz's failure to produce Mr. Polanco ... casts a shadow over their testimony as to the bona fides of their belief that Mr. Polanco had the authority to surrender the lease, and of the circumstances under which the 'surrender affidavit' was obtained. This finding is particularly compelled given Mr. Polanco's statement that he executed the surrender under duress. There can be no doubt in this Court's opinion that Mr. Polanco would provide elucidating, material information concerning the transaction at issue and that such information would not be cumulative of the testimony already provided. The landlord's and Mr. Cruz's failure to produce Mr. Polanco, indeed, no indication was given that any attempt was made to secure his attendance, requires this Court to presume that the reason Mr. Polanco's attendance was not secured or compelled was because his information and testimony would be unfavorable to the landlord and Mr. Cruz.
As a result of the apparent gaps in the landlord's case, the Civil Court concluded that the tenant had been illegally evicted and granted the restoration request. On appeal, the Appellate Term, First Department, affirmed noting as follows:
Giving due deference to the trial court's findings of fact and credibility ... we find ample support for the court's conclusion that landlord failed to satisfy its burden of proving tenant's surrender of the commercial lease in response to tenant's prima facie showing of an illegal lockout ... Thus, tenant was properly restored to possession of the premises ... We note that the surrender agreement relied upon by landlord was purportedly executed on behalf of tenant by a nonparty to the original lease who failed to testify at trial despite numerous requests by the court to secure his attendance. We have considered landlord's remaining arguments and find them unavailing.
Ultimately, Hip Hop's landlord -- and the new tenant, Mr. Cruz -- got fried.
For a copy of the Appellate Term's decision in Hip Hop Fries Shop Inc. v. Gibbons Realty Corp., please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2006/2006_51720.htm
For a copy of the Civil Court's decision, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2004/2004_51325.htm
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*Although it had no bearing on the case's outcome, the Civil Court characterized the Tenant as an "absentee tenant," suffering from a "lack of business judgment," who had stopped paying rent to the landlord back in December 2003.