200 EIGHTH AVENUE v. DAYTONA HOLDING

The declaration in defendant's favor was proper. Plaintiff-appellant Restaurant Corp., as a proposed assignee of the lease between defendant landlord and plaintiffs-respondents, was not in contractual privity with defendant, and thus was without recourse under the lease for defendant landlord's alleged wrongful withholding of consent to the proposed assignment. In any event, defendant's refusal to consent to the assignment was reasonable and therefore in accordance with the lease, since the proposed assignee did not timely tender adequate financial background information to enable defendant to ascertain whether it would be a financially responsible tenant (see, Astoria Bedding v. Northside Partnership, 239 A.D.2d 775, 776). Moreover, the financial information ultimately submitted by the proposed assignee, following defendant's rejection of the proposed assignment, demonstrated that the proposed assignee was not financially capable of assuming the obligations of the lease. Contrary to plaintiff-appellants' argument, there is no evidence that defendant waived its right to refuse to consent to the assignment on the ground of the proposed assignee's failure to demonstrate its financial responsibility. Indeed, all rent paid by plaintiff-appellants pending defendant's consideration of the assignment was accepted explicitly without prejudice to the assertion of defendant's prerogative, unwaivable under the lease, reasonably to withhold consent to an assignment (see, Jefpaul Garage Corp. v. Presbyterian Hosp. in City of New York, 61 N.Y.2d 442).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.