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AZEVEDO DE NEVES DE CARVALHOSA v. LINDGREN

August 6, 1982

MARIA MARGARIDA AZEVEDO DE NEVES DE CARVALHOSA, Plaintiff,
v.
ROBERT A. LINDGREN, ALLAN M. SCHNEIDER REAL ESTATE, INC., and ALLAN M. SCHNEIDER, individually, Defendants



The opinion of the court was delivered by: POLLACK

Milton Pollack, District Judge.

 The defendants Schneider move herein for a stay of this suit pending the disposition of an identical suit previously filed by the plaintiff against the same defendants asserting the same grievance as is charged here. For the reasons appearing hereafter, the stay will be granted in the interests of justice and the convenience of the parties and witnesses.

 This suit involves a dispute between the owner of a summer home and one of his tenants. Robert A. Lindgren, a U.S. citizen who currently resides in London, England, leased his house in Water Mill, Suffolk County, New York to one Taki Theodoracropolis for a term of one year commencing January 1, 1980. Paragraph 3 of the lease provided that: "The Tenant shall not, without written consent from the Landlord, assign or sublet the whole or any part of the premises . . . Landlord agrees that such consent shall not be unreasonably withheld."

 Mr. Lindgren later consented to an assignment of the lease to plaintiff Maria De Carvalhosa, who is a citizen of Portugal residing in New York City, and Eduardo Garriques for the period April 1, 1980 to December 31, 1980, for $15,000. Defendants Allan M. Schneider and Allan M. Schneider Real Estate, Inc. (the "owner's Broker") acted on behalf of Mr. Lindgren in this transaction and both plaintiff and Mr. Garriques paid their share of the rent directly to the owner's Broker.

 In a letter dated April 11, 1980 to the original lessee, Mr. Theodoracropolis, the owner's broker stated that his principal, Mr. Lindgren, agreed to permit the assignment to plaintiff and Mr. Garriques on the condition that, among other things:

 
1. The existing lease shall be carried forth written between Mr. Lindgren and yourself with dual responsibility resting on you as the original tenant and the sublet tenants.
 
2. All conditions regarding payment, term of lease, etc. shall be carried forth under the sublet.

 Plaintiff alleges that at the time of this approval of the assignment, the defendants also orally modified the sublease to plaintiff and Mr. Garriques, consenting to allow them to sublet the premises to yet another for the month of August, 1980. Plaintiff alleges that during the month of July, 1980, she presented to the owner's Broker a couple who had indicated willingness to sublet the premises for August, 1980 and that the owner's Broker expressed no objection. Apparently no sub-lease was ever executed with that couple. Instead, employing a broker that did not represent the owner, plaintiff entered into a sublease for the month of August, 1980 with one David Heckler.

 On August 1, 1980, the owner's Broker promptly advised plaintiff by letter that she had violated her assignment which prohibited sublease except under the conditions expressed in the original lease. The owner's Broker stated that plaintiff had "sublet Mr. Lindgren's property without authorization from either myself and/or Mr. Lindgren." The owner's Broker informed plaintiff that Mr. Lindgren would, however, agree to permit the unauthorized sublet on the condition that all rental agreements would terminate as of September 4, 1980, at which time Mr. Lindgren would retake possession of his property.

 On September 4, 1980, plaintiff attempted to enter the Lindgren property but was unable to do so, the locks having been changed. Plaintiff alleges that she had left personal belongings of great value in the Lindgren house, including designer dresses, jewelry worth $33,500 and quantities of liquor. Sixteen months later, on January 10, 1982, the plaintiff for the first time went to the premises to retrieve her dresses, valuables and champagne, but she alleges she was able to recover only a minor portion of them, and that the rest were missing.

 On October 23, 1980, plaintiff filed suit in New York State Supreme Court for the County of Suffolk, naming as defendants Mr. Lindgren and his Broker as well as certain others for, inter alia, breach of contract, fraud, conversion and violation of N.Y. Real Property Actions and Proceedings Law § 843. The action against Mr. Lindgren was dismissed for improper service of process, no personal service having been effected; instead service by registered mail was directed to him in England where he is employed.

 On June 11, 1982, plaintiff filed the present suit in this Court, again naming Mr. Lindgren and his Broker for virtually the identical relief and on the same grounds as are asserted in the state court suit.

 The plaintiff lives and works in New York City as a broker for William B. May & Co., a real estate firm. She is present under a "green card" enabling her to remain in this country. Nonetheless, since she is a citizen of Portugal, diversity jurisdiction exists. 28 U.S.C. § 1332(a) (2); Breedlove v. Nicolet, 32 U.S. (7 Pet.) 413, 431-32, 8 L. Ed. 731 (1833).

 The defendant Broker has moved this Court to stay this suit pending the resolution of the State ...


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