Joscar Co. v. Arlen Realty , 54 A.D.2d 541 ( 1976 )

Order, Supreme Court, New York County, entered on July 22, 1975, granting defendant’s motion to dismiss the complaint herein, unanimously modified, on the law, to the extent of reinstating the first cause of action and otherwise affirmed, without costs and without disbursements. Plaintiff was not a party to either the "Subletting and Assumption Agreement” or the "Assumption Agreement” entered into between defendant and Atlantic Department Stores, Inc. The language of the "Subletting and Assumption Agreement” makes it clear that defendant was to remain as tenant under the original lease and that Atlantic was merely a subtenant. It negates any possibility of an assignment as follows: "Section 101. The parties hereto covenant and acknowledge that they intend to create by this instrument, and that the legal effect of this instrument is and shall be, a subletting of the leased premises and not that of an assignment of the lease or any portion thereof, by Arlen to Atlantic.” Plaintiffs consent at the foot of the letter from Atlantic, dated July 28, 1971, is merely "to the sublease”. On the basis of the record before us, we find there was no assignment intended and no joint obligation created. Accordingly, plaintiffs failure to join Atlantic as a party defendant was not fatal to its otherwise legally sufficient first cause of action. Atlantic, being merely a subtenant of the subject premises, was not a necessary party to this action by plaintiff landlord based on breach of the terms of the primary lease. Concur&emdash;Markewich, J. P., Kupferman, Lupiano, Capozzoli and Lane, JJ.