Elisco Manufacturing Corp. v. Associated Transport, Inc. , 232 N.Y.S.2d 750 ( 1962 )

Louis B. Heller, J.

In this consolidated action wherein defendant, sublessor, is suing for an alleged balance of rent due and one of plaintiff sublessee’s cross complaints alleges damages arising from fraud and misrepresentation upon the execution of the lease, defendant moves for summary judgment pursuant to rule 113 of the Rules of Civil Practice.

Motion denied. The moving papers reveal many questions of fact included but not limited to the question of defendant’s title and its alleged misrepresentation and fraud.

The general rule is that a tenant may not dispute his landlord’s title for he is estopped from changing by his own act the character and effect of his tenure (Tilyou v. Reynolds, 108 N. Y. 558; People v. Savage, 236 App. Div. 745). However, the estoppel may be avoided when it is proved that the landlord was guilty of fraud in the execution of the lease (see Pryor v. Foster, 130 N. Y. 171; cf. Fergus Motors, Inc. v. Kramer, 72 N. Y. S. 2d 439; also Wernick v. Mehl Realty Co., 190 Misc. 400; 2 Reeves, Real Property, § 639, pp. 894-897).