| Bridge St. Enters. v Pastino's Italian Grill, Inc. |
| 2007 NY Slip Op 07114 [43 AD3d 1306] |
| September 28, 2007 |
| Appellate Division, Fourth Department |
| Bridge Street Enterprises, Appellant, v Pastino's Italian Grill, Inc.,et al., Respondents, et al., Defendants. |
—[*1] Law Offices of Donald R. Gerace, Utica (Donald R. Gerace of counsel), fordefendants-respondents Pastino's Italian Grill, Inc., Russell Digristina and Charles Digristina. Saunders, Kahler, Amoroso & Locke, L.L.P., Utica (Gregory J. Amoroso of counsel), fordefendants-respondents 55 Cheyenne Realty Corp. and Carmel Ezzo.
Appeal from an order of the Supreme Court, Onondaga County (Deborah H. Karalunas, J.),entered September 18, 2006. The order, insofar as appealed from, denied plaintiff's motion forsummary judgment.
It is hereby ordered that the order so appealed from be and the same hereby is unanimouslymodified on the law by granting the motion insofar as it seeks judgment on liability againstdefendants Pastino's Italian Grill, Inc., Russell Digristina, Charles Digristina, 55 CheyenneRealty Corp. and Carmel Ezzo and dismissal of the counterclaims and dismissing thecounterclaims and as modified the order is affirmed without costs.
Memorandum: We agree with plaintiff that Supreme Court erred in denying its motion forsummary judgment insofar as it seeks judgment on liability against defendants-respondents(defendants) and dismissal of the counterclaims asserted by defendants Pastino's Italian Grill, Inc.(Pastino's), Russell Digristina and Charles Digristina. We therefore modify the order accordingly.Pastino's is the third tenant-assignee on the lease between plaintiff as owner and defendantCarmella's Café of Dewitt, Inc. Defendant 55 Cheyenne Realty Corp. (Cheyenne) was thesecond tenant-assignee on the lease. Russell Digristina and Charles Digristina are the guarantorsof Pastino's obligations under the lease, and defendant Carmel Ezzo was the guarantor ofCheyenne's obligations under the lease. We conclude that plaintiff met its initial burden withrespect to defendants' liability by establishing that Pastino's violated the provisions of the leaseby closing its restaurant, vacating the property, and ceasing to pay plaintiff rent. Pastino'sallegations that plaintiff "tacitly agreed" or "tacitly consented" to such actions and [*2]Russell Digristina's averments that plaintiff's property managerconsented to such actions are insufficient to raise an issue of fact. There is no evidence in therecord before us indicating that plaintiff's property manager had power to act as an agent forplaintiff with respect to the lease. In any event, any such consent would constitute a nonbindingoral modification of the lease inasmuch as the terms of the lease expressly prohibit oralmodifications (see General Obligations Law § 15-301 [1]; Netti v LeFrois,303 AD2d 971, 972 [2003]; Fleet Bank v Pine Knoll Corp., 290 AD2d 792, 795[2002]).
We further conclude that plaintiff established that it properly terminated the lease byletter dated November 30, 2005 and that defendants failed to raise an issue of fact with respectthereto. The contentions of defendants that the termination letter was invalid because it recitedthe incorrect date of termination and was not signed by the proper party are raised for the firsttime on appeal and are thus not preserved for our review (see generally Barry v Gorecki, 38 AD3d 1213, 1216 [2007]; Giangrosso v Kummer Dev. Corp., 8AD3d 1037, 1038 [2004]). We further reject the contention of Pastino's and the Digristinasthat there are issues of fact precluding dismissal of their counterclaims. The first, second, thirdand fifth counterclaims are premised in part on inadmissible hearsay, which is insufficient toraise an issue of fact with respect to the counterclaims (see generally Zuckerman v City ofNew York, 49 NY2d 557, 562 [1980]), and the counterclaims also rely on statements that,even if made, are merely nonbinding oral modifications of the lease (see Netti, 303 AD2dat 972; Fleet Bank, 290 AD2d at 795). Moreover, the purported fourth counterclaim for"unjustified damage" to the "commercial reputation" of those defendants fails to state a cause ofaction (see State of New York v General Elec. Co., 199 AD2d 595, 596 [1993]; seealso CPLR 3016 [a]). Finally, we conclude that the court properly denied that part ofplaintiff's motion seeking judgment on damages, inasmuch as there are issues of fact on therecord before us with respect to plaintiff's damages (see generally Zuckerman, 49 NY2dat 562). Present—Hurlbutt, J.P., Gorski, Lunn, Fahey and Peradotto, JJ.