BACKGROUND Plaintiff commenced this action pursuant to a summons and endorsed complaint filed on January 31, 2019, seeking a judgement of $10,000.00 based on a breach of an oral sublease agreement. Defendant appeared pro se on February 14, 2019, and filed an answer denying that the debt was owed. Defendant further asserted that there were no legal agreements between the parties and counterclaimed for $7500.00 for alleged rent arrears. The initial court date was on March 21, 2019. The court (Dominquez, J) adjourned the action to September 11, 2019 for a conference. On September 11, 2019, both parties appeared ready for trial. The court held a bench trial and reserved decision. FINDINGS OF FACT Plaintiff is in the skin care business and defendant runs a hair salon. The parties agreed to rent a space together, where they would jointly operate their businesses. The parties found a suitable space located on the second floor of 864 Lexington Avenue, New York, New York (Subject Premises). Defendant entered into a lease agreement with the landlord of the Subject Premises. The tenant of record on the lease was The Madison Group, Inc. (Ex 1). Defendant executed the lease as President of The Madison Group, Inc.1 The lease provided that the Subject Premises would be used as a hair salon, and that the tenant would need prior written consent to sublet the space or a portion thereof. The lease agreement is for a ten year term through 2027. The space required renovations. The parties hired a contractor that charged them $16,500 for the renovation work. The contractor needed to be paid in cash. It was agreed that plaintiff would pay for $6500 of the work, and defendant would pay for the balance. The contractor was a friend of plaintiff. Receipts for work done by the contractor were submitted in evidence (Ex 2A). Plaintiff agreed to pay defendant $1350.00 per month in rent. Plaintiff submitted copies of checks tendered for payment of rent (Exs 2B-2K). Only the first check, dated December 7, 2017 was issued by plaintiff individually (Ex 2B). This check was in the amount of $4125.00 and was for the first three months rent. The balance of the checks were issued by Enki Wellness, LLC.2 All of the checks were made payable to Richard Stein individually except for check No 104 dated March 30, 2018 for $687.60 (Ex 2C). This check was made payable to The Madison Group. Plaintiff testified that she believed she was to have been included on the lease for the Subject Premises and that when she learned she was not on the lease she emailed defendant a proposed written sublease agreement (Ex 3) but the sublease was never executed by the parties. Plaintiff testified that business was slow and in an attempt to generate more business she put a sign on the street. Apparently, the sign alerted the landlord of the Subject Premises to plaintiff’s occupancy and the sublease arrangement between the parties. The landlord objected to plaintiff’s occupancy, as there was another tenant in the same building in the skin care business. The landlord issued a notice to cure to the parties and their related corporate entities (Ex 4). The notice was dated December 13, 2018 and alleged: that The Madison Group, Inc had performed renovations without the landlord’s prior written consent; and that signs had been impermissibly erected with regard to the business of both plaintiff and defendant; and that the Subject Premises was being used for purposes other than a hair salon in breach of the lease. Shortly after the notice was issued, defendant changed the locks to the Subject Premises unlawfully evicting plaintiff from possession. On or about February 2, 2019, plaintiff was able to collect her belongings from the Subject Premises. Defendant testified that he was never given any bills or invoices for the work done by the contractor. Defendant testified that plaintiff had trouble paying the rent on time. Defendant submitted a statement showing what payments were received (Ex A). However, at the conclusion of the trial, defendant stated on the record that he wished to withdraw his counterclaim for rent arrears. Defendant stated he provided the contractor with blank checks for the construction work and that the checks were thereafter made payable to plaintiff. Plaintiff credibly testified that she cashed the checks for the contractor, because the contractor had no established bank account and needed to be paid in cash. Copies of the checks were submitted in evidence (Ex B). DISCUSSION NY Gen. Oblig. Law §5-703 (McKinney) provides in pertinent part: A contract for the leasing for a longer period than one year, or for the sale, of any real property, or an interest therein, is void unless the contract or some note or memorandum thereof, expressing the consideration, is in writing, subscribed by the party to be charged, or by his lawful agent thereunto authorized by writing. However: The statutory bar may be overcome, however, if the plaintiff can prove part performance sufficient both to evidence the existence of, and to obligate the other party to, an otherwise unlawful oral agreement. See NY Gen. Oblig. Law §5-703(4); Anostario v. Vicinanzo, 59 NY2d 662, 664, 463 N.Y.S.2d 409, 450 N.E.2d 215, 216 (1983).1 [Messner Vetere Berger McNamee Schmetterer Euro RSCG Inc. v. Aegis Grp. Plc, 150 F.3d 194, 195 (2d Cir.), certified question accepted, 92 NY2d 916, (1998), and certified question answered, 93 NY2d 229, (1999)]. Here there was unequivocal partial performance of the contract. Plaintiff paid $6500.00 towards renovation costs in reliance upon the agreement that she would be allowed to remain in occupancy for the ten year period of the overlease. Instead she was allowed to occupy for only one year. After he unlawfully evicted plaintiff, defendant still retained the benefit of the renovated space and could indeed sublease to another occupant, as long as it was not a skin care salon. Based on the foregoing, the court finds that plaintiff is entitled to damages for 9/10 of the amount paid for the renovation which amounts to $5850.00. While the record does establish a cause of action for unlawful eviction, plaintiff did not sue for this cause of action, and even if she had, plaintiff failed to prove any damages for same (see eg N. Main St. Bagel Corp. v. Duncan, 37 AD3d 785, 786 holding measure of damages for wrongful eviction is value of the unexpired term of the lease over and above the rent the lessee must pay under its terms…together with any actual damages flowing directly from the wrongful eviction). CONCLUSION Based on the foregoing, the court finds plaintiff is entitled to judgment in the amount of $5850.00 against defendant plus costs and interest from January 31, 2019. This constitutes the decision and order of this court. Dated: September 11, 2019 New York, New York
