Genesee Management, Inc. v. Del Bello , 400 N.Y.S.2d 642 ( 1977 )

Order unanimously affirmed, with costs. Memorandum: Defendant seeks summary judgment in this action to recover the amounts due pursuant to a commercial lease. He asserts that the lease is void because it was executed by an agent of the landlord who lacked written authority to do so. The lease provides for a term of 10 years and, thus, it must comply with section 5-703 of the General Obligations Law. That section makes the enforceability of the lease dependent upon subscription by defendant, "the party to be charged” (subd 2) and also by the person creating the interest in the premises "or by his lawful agent, thereunto authorized by writing” (subd 1). It is clear that the present lease was not signed either by the person creating the interest or by his agent with written authorization. Therefore, no interest in real property was created by the lease and, accordingly, plaintiffs may not recover the amounts due pursuant to its provisions (cf. Geraci v Jenrette, 41 NY2d 660). However, since the record indicates that plaintiffs have a cause of action unrelated to the invalidity of the lease, for the use and occupancy of the premises, we affirm Special Term’s denial of defendant’s motion for summary judgment (see 4 Weinstein-Korn-Miller, NY Civ Prac, par 3212.10). (Appeal from order of Monroe Supreme Court— summary judgment.) Present—Cardamone, J. P., Simons, Dillon, Hancock, Jr., and Denman, JJ.