Landlord & Tenant

Supreme Ct., N.Y. Cty

(Schreiber, J.)

In consolidated proceedings to recover possession of three apartments for personal use of the landlords, tenants moved to dismiss for failure to send a timely non-renewal notice. The court dismissed the proceedings, holding that because the landlords had sent the “Golub” notice by mail, they were required to add 5 days to ensure adequate notice to the tenants.

The landlords claimed that the subject rent-regulated apartments were needed for their personal use (Rent Stabilization Code, 9 NYCRR sec. 2524.4(a)(1)). When the landlord makes such a claim, the landlord must give the tenant written notice of its intent not to renew at least 90 days and not more than 150 days prior to the expiration of the lease. (9 NYCRR sec. 2524.2(c)(3)). In this case, the landlords served the notices, known as “Golub” notices, by mail, and mailed the notices between 92 and 94 days before expiration of the tenants' leases. The tenants moved to dismiss, arguing that because the notices were sent by mail, the landlords were obligated to allow 5 days for delivery. As a result, the notices were actually served between 87 and 89 days before expiration of the leases, and were therefore untimely.

The court, in dismissing the proceedings, accepted the tenants' position, concluding that the Court of Appeals' decision in ATM One, LLC v. Landaverde, 2 NY3d 472, is applicable to Golub notices. As a result, the notices were untimely.

COMMENT

Despite language in Landaverde limiting the decision to notices to cure pursuant to ' 2504.1 (c) of the Emergency Tenant Protection Regs, courts have split as to whether Landaverde applies to other forms of notice. (In the Matter of ATM One, LLC v. Landaverde, 2 N.Y.3d 472 (2004)). Lower courts have been more willing to apply the Landaverde rule to other landlord-tenant notices where there is a short notice period. Southbridge Towers, Inc. v. Frymer, 4 Misc. 3d 804 (2004) [5-day notice to cure in Mitchell-Lama housing co-operatives]; Kerrin Realty Corp v. Cruz, Civ. Ct., N.Y. Co. 2004 Index No. L&T 81894/03 [7-day termination notice based upon persistent course of conduct by tenant alleged to constitute a nuisance]. However, where the notice period is longer, lower courts have been less willing to apply Landaverde. Lower East Side I Assoc. v. Estevez, 2004 N.Y. Slip. Op. 24518 (2004) [Refused to apply Landaverde to HUD recertification reminder with a minimum 90-day notice period]. With Croman, New York City courts are evenly divided on whether to apply the 5-day rule to Golub non-renewal notices which require a minimum 90-day notice period. 9 N.Y.C.R.R. ' 2524.2[c][3]; Shoshany v. Goldstein, N.Y.L.J. Feb. 9, 2005 p.18. [Applied Landaverde]; KSLM Columbus v. Bonnemere, N.Y.L.J., Jan. 5, 2005 p.19 [Refused to apply Landaverde]; Gnann v. Crawford, n.o.r. L&T 73194/04 [Refused to apply].

When compared with the specific regulatory requirements for completed service in Landaverde, the lack of language in the Golub regulation to determine completed service suggests less legislative concern with the details of notice. The Golub notice regulation simply states, “notice shall be served upon the tenant” at least 90 and not more than 150 days prior to the expiration of the lease term.” 9 NYCRR 2524.2[c][3]. In fact, the requirement of service either personally or by mail has been read into the regulation by the courts. Mauro v. Thorson, N.Y.L.J. Dec. 4, 1991 p.21. However, the regulation in Landaverde specifies the acceptable methods of service and required proof of service when a landlord serves by mail. 9 NYCRR ' 2508.1[a]. The legislative intent outlined in Landaverde, to protect tenants from immediate dispossession without the full notice period, cannot be found in the 90-day Golub notice, which intends only to provide tenants notice of non-renewal.

The application of Landaverde to Golub notices is ripe for appellate review, but the Court of Appeals appears unlikely to apply the Landaverde rule to Golub notices. In Landaverde, the court wanted to prevent disadvantage to the tenant by the owner's choice of service method. Landaverde at 478 (2004). However, even if a landlord mails a Golub notice on the 90th day and delivery is delayed, the tenant will receive notice with 85 days until non-renewal. Id. at 479. Five days' difference will be insignificant to a tenant who will not be forced to occupy another apartment for more than 2 months. Further, unlike Landaverde, after receiving notice, a tenant can remain in possession for 3 more months simply with payment of rent. Moreover, any of the grounds to challenge non-renewal can be mounted well within the 85 days. 9 NYCRR ' 2524.4[a]. The rationale used by the court in Landaverde, to protect tenants from disadvantage, does not apply to a situation where any disadvantage to tenant is trivial in scope.

Absence of Signed Lease Makes Tenancy Month-to-Month

Santaro v. Jack of Hearts Carpet

NYLJ 3/2/05, p. 22, col. 3

Supreme Ct., Onondaga Cty

(Carni, J.)

In a landlord's action for rent due, the tenant moved for summary judgment, denying the existence of a lease. The court granted the tenant's motion, holding that in the absence of a signed lease, the tenant had occupied the premises as a month-to-month tenant, and was not liable for rent after the tenant vacated the premises.

The tenant occupied the subject premises from 1997 through Jan. 31, 2002, paying $4000 per month for the commercial premises. When the tenant left, the landlord sought to collect rent for the period between the tenant's departure and the spring of 2003, when the landlord relet the premises to a new tenant. The landlord alleged that the tenant's occupancy was pursuant to a 10-year lease, but the landlord could not produce a signed copy of the lease. The tenant had, however, signed an estoppel certificate directed to a third party who had agreed to provide the landlord with refinancing. The certificate contained references to a “lease” appended to the certificate, and reflected a lease term running through September 2007, but no lease was appended. The tenant also signed a subordination agreement that referred to the lease, but again, no lease was attached. Moreover, the landlord alleged that it had spent at least $350,000 improving the premises in reliance on the 10-year lease. The tenant, by contrast, moved for summary judgment, contending that the statute of frauds barred the landlord's action for rent.

In awarding summary judgment to the tenant, the court relied on the Statute of Frauds (General Obligations Law sec. 5-703). The court rejected the landlord's argument that the tenant had ratified the lease agreement by subsequent actions, including signing the estoppel certificate and the subordination agreement. The court held that ratification of an otherwise invalid agreement is available to overcome the unenforceability of a contract only when the contract itself is valid and binding by all appearances, but is subject to disaffirmance by one of the parties because of incapacity, lack of authority, or absence of intent to enter into the contract on the terms stated. The doctrine does not apply in the absence of a signed contract. The court then rejected the landlord's invocation of the part performance exception to the statute of frauds, holding that the landlord could point to no conduct unequivocally referable to the alleged lease agreement. In particular, the court noted that the landlord's expenditures on the premises were consistent with an expectation that the landlord would need to attract a series of month-to-month tenants to the premises. As a result, the court dismissed the landlord's complaint.

Housing Authority Entitled to Possession for Drug Use By Tenant's Son

New York City Housing Authority v. Taylor

NYLJ 3/3/05, p. 28, col. 6

AppTerm, 2nd and 11th Districts

(memorandum opinion)

In the housing authority's proceeding to recover possession a from tenant on the ground that the premises had been used for an illegal trade or business, the authority appealed from Civil Court's dismissal of the petition. The Appellate Term reversed and awarded possession to the housing authority, holding that in light of the provisions of the lease, the landlord was entitled to recover possession even if the tenant did not know of her son's use of the premises for illegal purposes.

The subject premises are part of a federally subsidized housing project. The tenant's lease, pursuant to Congressional mandate, provides that criminal activity that threatens the safety of other tenants, and drug-related criminal activity, by any member of the tenant's household, would constitute grounds for termination of the lease. The tenant's son sold crack cocaine to an undercover officer in the building's lobby and at the door to the tenant's apartment. After execution of a search warrant, the police recovered a gun, bullets, and illegal narcotics in the son's room in the apartment. The housing authority then brought this proceeding, pursuant to RPAPL 711(5), to recover possession of the premises. Civil Court dismissed, concluding that no proceeding under RPAPL 711(5) would lie in the absence of proof that tenant knew of and acquiesced in the criminal activity. The housing authority appealed.

In reversing, the Appellate Term acknowledged decisions holding that a landlord proceeding under RPAPL 711(5) must show a tenant's knowledge and acquiescence in the illegal activity, but held that the tenant's express agreement in the lease to be responsible for any drug-related activity within the premises charges the tenant with knowledge of that activity. Hence, the housing authority satisfied the requisites of RPAPL 711(5), and was entitled to possession.

COMMENT

42 U.S.C. 1437(d)(l)(6) requires public housing agencies to utilize lease terms which provide that “any drug-related criminal activity on or off such premises, engaged in by a public housing tenant, any member of the tenant's household, or any guest or other person under the tenant's control, shall be cause for termination of tenancy”. In Dep't of Housing v. Rucker, 535 U.S. 125 (2002), the Supreme Court ruled that the plain language of the statute makes tenants strictly liable for drug activity by household members or guests. In Rucker, the tenants purportedly did not know that their relatives and guests, who included both residents and non-residents of the subject premises, were engaged in drug-related criminal activities at and near the housing projects. The court held that, because 42 U.S.C. 1437(d)(l)(6) permits termination of tenancy for “any” such drug-related activity, Congress did not intend to limit such terminations to cases in which the tenant had knowledge of the crimes.

Where the federal statute imposes a strict liability standard for termination of a federally subsidized tenancy based on drug activity, in New York RPAPL 711(5) applies not only to federally subsidized housing, but also to unsubsidized tenants, and permits termination if the premises are used for illegal purposes. In 88-09 Realty, LLC v. Hill, 305 A.D.2d 409, 757 N.Y.S.2d 904 (2d Dep't 2003), the Appellate Division held that, though strict liability does not attach, the mere inference of acquiescence is sufficient to support an RPAPL 711(5) proceeding. The court found that the tenant's son and other acquaintances had engaged in drug dealing from the subject premises over a period of time, which led other members of the community to complain. Without noting whether these complaints were directed toward the tenant or the landlord, the Appellate Division held that the landlord met its burden and proved that the tenant either knew of the drug activity or should have known, and therefore was subject to eviction.

In general, a landlord might prefer to proceed via RPAPL 711(5), rather than RPAPL 711(1), because RPAPL 711(1) requires a lease provision permitting a termination of tenancy if the landlord finds the tenant objectionable, and then requires the landlord to prove that the tenant is objectionable in order to maintain the summary proceeding. In Douglas L. Elliman & Co. v. Karlsen, 59 Misc. 2d 243, 298 N.Y.S.2d 594 (Civ. Ct. N.Y. Cty. 1969), the Civil Court noted that, to be objectionable, a tenant's conduct must be unreasonable or unlawful to the annoyance, inconvenience, discomfort or damage of others. By contrast, RPAPL 711(5) permits a summary proceeding based solely on illegality, and a landlord need not show that the illegal activity harmed anyone else.

Second-Hand Smoke May Constitute Breach of Quiet Enjoyment Covenant

Paul v. 370 Lex, LLC

NYLJ 3/9/05, p. 18, col. 1

Supreme Ct., N.Y. Cty

(Braun, J)

In a former tenant's action against a landlord for breach of the covenant of quiet enjoyment, and for nuisance, the landlord moved for summary judgment dismissing the complaint. The court denied the landlord's motion, holding that the tenant had raised questions of fact about whether second-hand smoke from a neighboring office required abandonment of the premises.

The tenant, a lawyer and a CPA, leased the subject office in 1991, and extended the lease in 2000. Anderson, another tenant, began occupying adjacent space in 1999, and the tenant contends that from that date forward, cigarette smoke began to infiltrate his offices, allegedly making some rooms completed unusable, and affecting all rooms in the suite. The tenant complained to the landlord, who allegedly approached Anderson. Anderson testified that his wife, who was also his office manager, smoked five to six cigarettes per day in the office, and that he smoked there only occasionally. Anderson's lease required him to avoid uses of the space that would be offensive to other building occupants by way of odors. The landlord advised Anderson of numerous complaints about the smoking, and warned that the landlord would take appropriate action. The landlord, however, never took steps to evict Anderson. Ultimately, the tenant moved out of his office, and then brought this action to recover for its moving costs and for its inability to use the premises. The tenant stated claims for breach of the covenant of quiet enjoyment, for nuisance, and for violation of state and city anti-smoking regulations. The landlord and Anderson moved for summary judgment.

The court first held that the landlord had alleged facts sufficient to make out a claim for breach of the covenant of quiet enjoyment, which is implied in every lease. The court rejected the landlord's argument that the tenant had waited too long to leave the premises, noting that the explanation of why the tenant renewed its lease and did not move out earlier raised questions of fact precluding summary judgment. The court did grant summary judgment to the landlord on claims arising out of state and city smoking regulations, particularly section 2(b) of the Public Health Law and section 17-504(b) of the city's administrative code. The court held that these provisions did not confer a private right of action in favor of parties alleging injury from second-hand smoke. Finally, the court awarded summary judgment to the landlord, but not to Anderson, on the nuisance claim, concluding that the landlord had not created the smoke infiltration condition that caused the alleged nuisance.

Landlord Must Add 5 Days to 'Golub' Notice

Croman v. Thompson

NYLJ 2/23/05, p. 21, col. 3

Supreme Ct., N.Y. Cty

(Schreiber, J.)

In consolidated proceedings to recover possession of three apartments for personal use of the landlords, tenants moved to dismiss for failure to send a timely non-renewal notice. The court dismissed the proceedings, holding that because the landlords had sent the “Golub” notice by mail, they were required to add 5 days to ensure adequate notice to the tenants.

The landlords claimed that the subject rent-regulated apartments were needed for their personal use (Rent Stabilization Code, 9 NYCRR sec. 2524.4(a)(1)). When the landlord makes such a claim, the landlord must give the tenant written notice of its intent not to renew at least 90 days and not more than 150 days prior to the expiration of the lease. (9 NYCRR sec. 2524.2(c)(3)). In this case, the landlords served the notices, known as “Golub” notices, by mail, and mailed the notices between 92 and 94 days before expiration of the tenants' leases. The tenants moved to dismiss, arguing that because the notices were sent by mail, the landlords were obligated to allow 5 days for delivery. As a result, the notices were actually served between 87 and 89 days before expiration of the leases, and were therefore untimely.

The court, in dismissing the proceedings, accepted the tenants' position, concluding that the Court of Appeals' decision in ATM One, LLC v. Landaverde , 2 NY3d 472, is applicable to Golub notices. As a result, the notices were untimely.

COMMENT

Despite language in Landaverde limiting the decision to notices to cure pursuant to ' 2504.1 (c) of the Emergency Tenant Protection Regs, courts have split as to whether Landaverde applies to other forms of notice. (In the Matter of ATM One, LLC v. Landaverde, 2 N.Y.3d 472 (2004)). Lower courts have been more willing to apply the Landaverde rule to other landlord-tenant notices where there is a short notice period. Southbridge Towers, Inc. v. Frymer, 4 Misc. 3d 804 (2004) [5-day notice to cure in Mitchell-Lama housing co-operatives]; Kerrin Realty Corp v. Cruz, Civ. Ct., N.Y. Co. 2004 Index No. L&T 81894/03 [7-day termination notice based upon persistent course of conduct by tenant alleged to constitute a nuisance]. However, where the notice period is longer, lower courts have been less willing to apply Landaverde. Lower East Side I Assoc. v. Estevez, 2004 N.Y. Slip. Op. 24518 (2004) [Refused to apply Landaverde to HUD recertification reminder with a minimum 90-day notice period]. With Croman, New York City courts are evenly divided on whether to apply the 5-day rule to Golub non-renewal notices which require a minimum 90-day notice period. 9 N.Y.C.R.R. ' 2524.2[c][3]; Shoshany v. Goldstein, N.Y.L.J. Feb. 9, 2005 p.18. [Applied Landaverde]; KSLM Columbus v. Bonnemere, N.Y.L.J., Jan. 5, 2005 p.19 [Refused to apply Landaverde]; Gnann v. Crawford, n.o.r. L&T 73194/04 [Refused to apply].

When compared with the specific regulatory requirements for completed service in Landaverde, the lack of language in the Golub regulation to determine completed service suggests less legislative concern with the details of notice. The Golub notice regulation simply states, “notice shall be served upon the tenant” at least 90 and not more than 150 days prior to the expiration of the lease term.” 9 NYCRR 2524.2[c][3]. In fact, the requirement of service either personally or by mail has been read into the regulation by the courts. Mauro v. Thorson, N.Y.L.J. Dec. 4, 1991 p.21. However, the regulation in Landaverde specifies the acceptable methods of service and required proof of service when a landlord serves by mail. 9 NYCRR ' 2508.1[a]. The legislative intent outlined in Landaverde, to protect tenants from immediate dispossession without the full notice period, cannot be found in the 90-day Golub notice, which intends only to provide tenants notice of non-renewal.

The application of Landaverde to Golub notices is ripe for appellate review, but the Court of Appeals appears unlikely to apply the Landaverde rule to Golub notices. In Landaverde, the court wanted to prevent disadvantage to the tenant by the owner's choice of service method. Landaverde at 478 (2004). However, even if a landlord mails a Golub notice on the 90th day and delivery is delayed, the tenant will receive notice with 85 days until non-renewal. Id. at 479. Five days' difference will be insignificant to a tenant who will not be forced to occupy another apartment for more than 2 months. Further, unlike Landaverde, after receiving notice, a tenant can remain in possession for 3 more months simply with payment of rent. Moreover, any of the grounds to challenge non-renewal can be mounted well within the 85 days. 9 NYCRR ' 2524.4[a]. The rationale used by the court in Landaverde, to protect tenants from disadvantage, does not apply to a situation where any disadvantage to tenant is trivial in scope.

Absence of Signed Lease Makes Tenancy Month-to-Month

Santaro v. Jack of Hearts Carpet

NYLJ 3/2/05, p. 22, col. 3

Supreme Ct., Onondaga Cty

(Carni, J.)

In a landlord's action for rent due, the tenant moved for summary judgment, denying the existence of a lease. The court granted the tenant's motion, holding that in the absence of a signed lease, the tenant had occupied the premises as a month-to-month tenant, and was not liable for rent after the tenant vacated the premises.

The tenant occupied the subject premises from 1997 through Jan. 31, 2002, paying $4000 per month for the commercial premises. When the tenant left, the landlord sought to collect rent for the period between the tenant's departure and the spring of 2003, when the landlord relet the premises to a new tenant. The landlord alleged that the tenant's occupancy was pursuant to a 10-year lease, but the landlord could not produce a signed copy of the lease. The tenant had, however, signed an estoppel certificate directed to a third party who had agreed to provide the landlord with refinancing. The certificate contained references to a “lease” appended to the certificate, and reflected a lease term running through September 2007, but no lease was appended. The tenant also signed a subordination agreement that referred to the lease, but again, no lease was attached. Moreover, the landlord alleged that it had spent at least $350,000 improving the premises in reliance on the 10-year lease. The tenant, by contrast, moved for summary judgment, contending that the statute of frauds barred the landlord's action for rent.

In awarding summary judgment to the tenant, the court relied on the Statute of Frauds (General Obligations Law sec. 5-703). The court rejected the landlord's argument that the tenant had ratified the lease agreement by subsequent actions, including signing the estoppel certificate and the subordination agreement. The court held that ratification of an otherwise invalid agreement is available to overcome the unenforceability of a contract only when the contract itself is valid and binding by all appearances, but is subject to disaffirmance by one of the parties because of incapacity, lack of authority, or absence of intent to enter into the contract on the terms stated. The doctrine does not apply in the absence of a signed contract. The court then rejected the landlord's invocation of the part performance exception to the statute of frauds, holding that the landlord could point to no conduct unequivocally referable to the alleged lease agreement. In particular, the court noted that the landlord's expenditures on the premises were consistent with an expectation that the landlord would need to attract a series of month-to-month tenants to the premises. As a result, the court dismissed the landlord's complaint.

Housing Authority Entitled to Possession for Drug Use By Tenant's Son

New York City Housing Authority v. Taylor

NYLJ 3/3/05, p. 28, col. 6

AppTerm, 2nd and 11th Districts

(memorandum opinion)

In the housing authority's proceeding to recover possession a from tenant on the ground that the premises had been used for an illegal trade or business, the authority appealed from Civil Court's dismissal of the petition. The Appellate Term reversed and awarded possession to the housing authority, holding that in light of the provisions of the lease, the landlord was entitled to recover possession even if the tenant did not know of her son's use of the premises for illegal purposes.

The subject premises are part of a federally subsidized housing project. The tenant's lease, pursuant to Congressional mandate, provides that criminal activity that threatens the safety of other tenants, and drug-related criminal activity, by any member of the tenant's household, would constitute grounds for termination of the lease. The tenant's son sold crack cocaine to an undercover officer in the building's lobby and at the door to the tenant's apartment. After execution of a search warrant, the police recovered a gun, bullets, and illegal narcotics in the son's room in the apartment. The housing authority then brought this proceeding, pursuant to RPAPL 711(5), to recover possession of the premises. Civil Court dismissed, concluding that no proceeding under RPAPL 711(5) would lie in the absence of proof that tenant knew of and acquiesced in the criminal activity. The housing authority appealed.

In reversing, the Appellate Term acknowledged decisions holding that a landlord proceeding under RPAPL 711(5) must show a tenant's knowledge and acquiescence in the illegal activity, but held that the tenant's express agreement in the lease to be responsible for any drug-related activity within the premises charges the tenant with knowledge of that activity. Hence, the housing authority satisfied the requisites of RPAPL 711(5), and was entitled to possession.

COMMENT

42 U.S.C. 1437(d)(l)(6) requires public housing agencies to utilize lease terms which provide that “any drug-related criminal activity on or off such premises, engaged in by a public housing tenant, any member of the tenant's household, or any guest or other person under the tenant's control, shall be cause for termination of tenancy”. In Dep't of Housing v. Rucker, 535 U.S. 125 (2002), the Supreme Court ruled that the plain language of the statute makes tenants strictly liable for drug activity by household members or guests. In Rucker, the tenants purportedly did not know that their relatives and guests, who included both residents and non-residents of the subject premises, were engaged in drug-related criminal activities at and near the housing projects. The court held that, because 42 U.S.C. 1437(d)(l)(6) permits termination of tenancy for “any” such drug-related activity, Congress did not intend to limit such terminations to cases in which the tenant had knowledge of the crimes.

Where the federal statute imposes a strict liability standard for termination of a federally subsidized tenancy based on drug activity, in New York RPAPL 711(5) applies not only to federally subsidized housing, but also to unsubsidized tenants, and permits termination if the premises are used for illegal purposes. In 88-09 Realty, LLC v. Hill, 305 A.D.2d 409, 757 N.Y.S.2d 904 (2d Dep't 2003), the Appellate Division held that, though strict liability does not attach, the mere inference of acquiescence is sufficient to support an RPAPL 711(5) proceeding. The court found that the tenant's son and other acquaintances had engaged in drug dealing from the subject premises over a period of time, which led other members of the community to complain. Without noting whether these complaints were directed toward the tenant or the landlord, the Appellate Division held that the landlord met its burden and proved that the tenant either knew of the drug activity or should have known, and therefore was subject to eviction.

In general, a landlord might prefer to proceed via RPAPL 711(5), rather than RPAPL 711(1), because RPAPL 711(1) requires a lease provision permitting a termination of tenancy if the landlord finds the tenant objectionable, and then requires the landlord to prove that the tenant is objectionable in order to maintain the summary proceeding. In Douglas L. Elliman & Co. v. Karlsen, 59 Misc. 2d 243, 298 N.Y.S.2d 594 (Civ. Ct. N.Y. Cty. 1969), the Civil Court noted that, to be objectionable, a tenant's conduct must be unreasonable or unlawful to the annoyance, inconvenience, discomfort or damage of others. By contrast, RPAPL 711(5) permits a summary proceeding based solely on illegality, and a landlord need not show that the illegal activity harmed anyone else.

Second-Hand Smoke May Constitute Breach of Quiet Enjoyment Covenant

Paul v. 370 Lex, LLC

NYLJ 3/9/05, p. 18, col. 1

Supreme Ct., N.Y. Cty

(Braun, J)

In a former tenant's action against a landlord for breach of the covenant of quiet enjoyment, and for nuisance, the landlord moved for summary judgment dismissing the complaint. The court denied the landlord's motion, holding that the tenant had raised questions of fact about whether second-hand smoke from a neighboring office required abandonment of the premises.

The tenant, a lawyer and a CPA, leased the subject office in 1991, and extended the lease in 2000. Anderson, another tenant, began occupying adjacent space in 1999, and the tenant contends that from that date forward, cigarette smoke began to infiltrate his offices, allegedly making some rooms completed unusable, and affecting all rooms in the suite. The tenant complained to the landlord, who allegedly approached Anderson. Anderson testified that his wife, who was also his office manager, smoked five to six cigarettes per day in the office, and that he smoked there only occasionally. Anderson's lease required him to avoid uses of the space that would be offensive to other building occupants by way of odors. The landlord advised Anderson of numerous complaints about the smoking, and warned that the landlord would take appropriate action. The landlord, however, never took steps to evict Anderson. Ultimately, the tenant moved out of his office, and then brought this action to recover for its moving costs and for its inability to use the premises. The tenant stated claims for breach of the covenant of quiet enjoyment, for nuisance, and for violation of state and city anti-smoking regulations. The landlord and Anderson moved for summary judgment.

The court first held that the landlord had alleged facts sufficient to make out a claim for breach of the covenant of quiet enjoyment, which is implied in every lease. The court rejected the landlord's argument that the tenant had waited too long to leave the premises, noting that the explanation of why the tenant renewed its lease and did not move out earlier raised questions of fact precluding summary judgment. The court did grant summary judgment to the landlord on claims arising out of state and city smoking regulations, particularly section 2(b) of the Public Health Law and section 17-504(b) of the city's administrative code. The court held that these provisions did not confer a private right of action in favor of parties alleging injury from second-hand smoke. Finally, the court awarded summary judgment to the landlord, but not to Anderson, on the nuisance claim, concluding that the landlord had not created the smoke infiltration condition that caused the alleged nuisance.