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Civil Court of the City of New York, New York County, July 9, 2008
APPEARANCES OF COUNSEL
Stern Tannenbaum & Bell, LLP, New York City (Karen S. Frieman of counsel), for respondent. Rosenberg & Estis, P.C., New York City (Norman Flitt and Warren A. Estis of counsel), for petitioner.
{**21 Misc 3d at 329} {**21 Misc 3d at 329} OPINION OF THE COURT
Arthur F. Engoron, J.
It is hereby ordered that the motion is granted and the cross motion is denied.
The instant motion and cross motion in this summary nonpayment proceeding raise several interesting issues that have been well-briefed and vigorously (indeed, at times, vociferously) argued by counsel. However, resolution of a single dispositive issue, to wit, subject matter jurisdiction vel non, inclines the court not to decide anything else.
One of those interesting issues is whether or not a two-page document, dated January 10, 2006 (cross-moving exhibit A) (the 1/10/06 document), on the letterhead of nonparty Solow Management Corporation, constitutes a binding lease, as argued by petitioner Solow Building Company, L.L.C., or a nonbinding "agreement to agree," as argued by respondent Jones Apparel Group, Inc. Factors militating in favor of the former view are that the document appears to contain all necessary material terms and the complete agreement between the parties. (See generally Bed Bath & Beyond Inc. v IBEX Constr., LLC, 52 AD3d 413 [1st Dept 2008].) Factors militating in favor of the latter view are that the first sentence says that Solow Management "will amend" an existing lease (emphasis added) and, also, that a sentence on the second page notes that "the required lease
amendment is being prepared"[FN*] (emphasis added). However, this court does not have subject matter jurisdiction of this summary nonpayment proceeding between these two parties whether or not the 1/10/06 document is binding.
Petitioner may not maintain the instant summary nonpayment proceeding against respondent unless there is a landlord-tenant relationship between the parties. (See generally [*2]RPAPL 711 [2].) Thus, if the 1/10/06 document is not binding on respondent, then this court does not have subject matter jurisdiction over this proceeding (there being no other document that would confer such jurisdiction). If, on the other hand, the agreement is binding, then "[a]ll other terms and conditions of the{**21 Misc 3d at 330}{**21 Misc 3d at 330} Lease shall remain unchanged and in full force and effect." One term of a lease is who the "tenant" is. Here, under "the Lease," the tenant may be nonparty "Maxwell Shoe Company, Inc."; or the tenant may be nonparty "Nine West Corporation"; or, this lease having a long and complicated history, the tenant may be "none of the above"; but the tenant is not respondent Jones (which apparently is the corporate parent of Nine West Corp.). Had the parties intended that respondent be obligated under the lease, this could easily have been indicated. Furthermore, the 1/10/06 document, binding or not, contemplated an "amendment" of an existing lease, not an "assignment," "assumption" and/or "transfer."
All of the foregoing is obvious and straightforward, so why are we here? Because petitioner furiously asserts that the 1/10/06 document is binding, and that it is binding on respondent, as it was signed "Jones Apparel Group, Inc. [/s/] By: Stephen I. Simmons, Vice President

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