In the Matter of 148 South Emerson Partners, LLC, petitioner-respondent,
148 South Emerson Associates, LLC, respondent; Drew Doscher, etc., intervenor respondent-appellant.
Kasowitz Benson Torres LLP, New York, NY (Michael J. Bowe of
counsel), for intervenor respondent-appellant.
& Porter Kaye Scholer LLP, New York, NY (James M.
Catterson, Margaret A. Rogers, Stephanna F. Szotkowski, and
Greenberg Traurig, LLP [Michael Burrows], of counsel), for
WILLIAM F. MASTRO, J.P. L. PRISCILLA HALL SANDRA L. SGROI
COLLEEN D. DUFFY, JJ.
DECISION & ORDER
from an order of the Supreme Court, Suffolk County (Jerry
Garguilo, J.), dated April 14, 2016. The order, insofar as
appealed from, after a framed-issue hearing, sua sponte,
determined that there is no leasehold between the petitioner
and the respondent.
that on the Court's own motion, the notice of appeal from
the order is deemed to be an application for leave to appeal,
and leave to appeal is granted (see CPLR 5701[c]);
and it is further, ORDERED that the order is affirmed insofar
as appealed from, with costs.
Doscher, Michael Meagher, Michael Meyer, and Stephen Smith
(hereinafter collectively the managing members) formed two
limited liability companies, 148 South Emerson Partners, LLC
(hereinafter Emerson Partners), and 148 South Emerson
Associates, LLC (hereinafter Emerson Associates). Emerson
Partners was formed to "own, lease and manage" real
property located at 148 South Emerson Avenue in Montauk
(hereinafter the property). Emerson Associates, in accordance
with its corporate purpose, owns and manages a restaurant
business on the property. Initially, the managing members
each held a 25% ownership interest in both Emerson Partners
and Emerson Associates. However, in July 2012, Meagher and
Smith assigned their respective ownership interests in
Emerson Associates to Meyer and Doscher.
April 3, 2015, a special meeting of Emerson Partners was
called by Meagher and Meyer to vote on a resolution to evict
Emerson Associates from the property. The meeting was held on
April 13, 2015, at which time Meagher, Meyer, and Smith voted
in favor of the proposed resolution to evict, and Doscher
opposed. On April 14, 2015, Emerson Partners issued a
"Notice of Termination of Tenancy" to Emerson
Associates, stating that "by no later than May 15,
2015... [Emerson Associates] must surrender possession of the
[property]" to Emerson Partners. Three days after
Emerson Associates was supposed to vacate the property,
Doscher's attorney produced a copy of a purported lease
entered into between Emerson Partners and Emerson Associates
(hereinafter the lease). The lease was undated, and the names
of the persons who signed the lease on behalf of Emerson
Partners and Emerson Associates were not printed below the
order to show cause dated June 4, 2015, Emerson Partners
commenced this summary holdover proceeding pursuant to RPAPL
711(1) against Emerson Associates to evict it from the
property. Doscher was granted leave to intervene. A
framed-issue hearing was held as to the validity of the
lease, in which all parties participated. After the hearing,
in an order dated April 14, 2016, the Supreme Court, inter
alia, determined that there was no leasehold between Emerson
Partners and Emerson Associates. Doscher appeals.
appeal, Doscher argues that the lease is valid because it was
ratified by Emerson Partners. " An unauthorized
execution of an instrument affecting the title to land or an
interest therein may be ratified by the owner of the land or
interest so as to be binding on him'" (Lipman v
Vebeliunas, 39 A.D.3d 488, 490, quoting Holm v
C.M.P. Sheet Metal, 89 A.D.2d 229, 232). " The act
of ratification, whether express or implied, must be
performed with full knowledge of the material facts relating
to the transaction, and the assent must be clearly
established and may not be inferred from doubtful or
equivocal acts or language'" (Lipman v
Vebeliunas, 39 A.D.3d at 490, quoting Holm v C.M.P.
Sheet Metal, 89 A.D.2d at 233; see DiPizio Constr.
Co., Inc. v Erie Canal Harbor Dev. Corp., 134 A.D.3d
1418, 1419-1420; American Motorists Ins. Co. v Keep
Servs., Inc., 63 A.D.3d 865, 867).
to Doscher's contention, the evidence at the hearing did
not establish that Emerson Partners ratified the lease with
full knowledge of all the material facts relating to the
lease (see CIT Tech. Fin. Servs. I LLC v Bronx
Westchester Med. Group, P.C., 117 A.D.3d 567, 567;
Holm v C.M.P. Sheet Metal, 89 A.D.2d at 233). There
was no evidence of any correspondence between the parties
concerning the lease, the lease was not signed by Meagher,
Meyer, or Smith, and there was no evidence that a copy of the
lease was ever provided to Meagher, Meyer, and Smith (cf.
O'Neill v Vebeliunas, 136 A.D.3d 876, 877). Although
Doscher claimed to have seen the lease in 2011, it was only
belatedly produced in this proceeding by his attorneys after
their "searches and inquiries" uncovered it.
addition, while it was undisputed that since 2011 Emerson
Associates paid various expenses related to the property,
including real estate taxes and general liability insurance,
and paid for approximately $1 million in improvements to the
property, there was no evidence that Emerson Associates made
those payments pursuant to the lease or that Emerson Partners
received those benefits with knowledge of the lease or its
terms. Similarly, while there was evidence that Emerson
Associates paid rent to Emerson Partners in 2012, the rental
payments did not correlate to the monthly or annual rent
required under the lease.
under these circumstances, the Supreme Court properly
determined that there was no leasehold between Emerson
Partners and Emerson Associates.
argument that Emerson Associates' partial performance
under the lease precluded application of the statute of
frauds is not properly before this Court, since it was
improperly raised for the first ...