Landlord & Tenant

Supreme Ct., N.Y. Cty

(Madden, J.)

In an action by subtenant against tenant and landlord for injunctive and declaratory relief, subtenant sought partial summary judgment on its counterclaim against main tenant for refund of rent. The court granted subtenant's motion, holding that under the terms of an agreement between subtenant and tenant, the latter was not entitled to rent paid after expiration of the main lease.

Landlord's predecessor entered into a 20-year ground lease with tenant. The lease, which gave tenant the right to renew for two additional 5-year terms, expired on Jan. 31, 2004. Tenant built a building on the premises, and subleased the building to a predecessor of subtenant Chase. The last sublease to Chase expired on Jan. 30, 2004. At the expiration of tenant's lease term, a dispute arose between landlord and tenant over tenant's right to renew, resulting in a holdover proceeding by landlord against tenant. Subtenant Chase, to protect its interest, executed two separate agreements. The first, executed March 19, 2004 between Chase and landlord, granted Chase the right to continue occupying the premises in contemplation of execution of a direct lease between landlord and tenant, and required Chase to pay use and occupancy for February and March 2004. The second, dated April 13, 2004 between Chase and tenant, acknowledged landlord's holdover proceeding, acknowledged that Chase had paid tenant rent for February and March 2004, and provided that tenant agreed that if the lease were adjudicated to have been terminated as of Jan. 31, 2004, tenant would refund to Chase the entire amount of the February and March rent, amounting to $33,097.20, while Chase agreed to pay future rent if a court determined that tenant had validly renewed the lease. In November 2004, tenant served Chase with a 10-day notice of default and rent demand, seeking payment of rent from April through November 2004. Chase then brought this action seeking inter-pleader relief with respect to conflicting and competing demands for rent and for use and occupancy during the identical period. Meanwhile, in May 2005, landlord was awarded summary judgment in landlord's holdover proceeding, concluding that the lease had expired and that tenant's then-current occupancy was based on a month-to-month tenancy.

In awarding summary judgment to Chase on its claim against tenant for rent paid for February and March 2004, the court rejected tenant's argument that by virtue of its month-to-month tenancy, the ground lease continued, rendering Chase liable under the terms of the April 13 agreement. The court held that the month-to-month tenancy did not extend the ground lease, which had clearly expired. Expiration triggered Chase's right to a refund under the April 13 agreement.

Domestic Partner Not Entitled to Name on Rent-Stabilized Lease

Zagrosik v. New York State Division of Housing and Community Renewal

NYLJ 7/5/06, p. 26, col. 3

Supreme Ct., N.Y. Cty

(Figueroa, J.)

In an article 78 proceeding, residential tenant sought to annul DHCR's determination denying his application to compel his landlord to add his domestic partner's name to his lease. The court dismissed the petition, holding that the Rent Stabilization Code does not extend to domestic partners the same rights it extends to spouses.

Tenant and his domestic partner have lived in the subject rent-stabilized apartment since 1993. They possess a certificate of domestic partnership. When tenant sought to add the partner's name to the lease, landlord refused, and DHCR concluded that domestic partner had no right to have his name added. Tenant then brought this article 78 proceeding.

In dismissing the proceeding, Supreme Court rejected the argument that Braschi v. Stahl Management, 74 NY2d 201, required the court to treat a domestic partner as a spouse. The court conceded that the regulation (and DHCR's decision in this case) gave the domestic partner succession rights to the subject apartment ' the same rights extended to a life partner in the Braschi case. But the court labeled 'incorrect' an interpretation of Braschi that would require DHCR to extend to the domestic partner the rights of a joint tenancy ' rights the statute extends only to spouses.

Loft Tenant Not Entitled to Statutory Protection

American Package Company, Inc. v. Kocik

NYLJ 7/5/06, p. 27, col. 1

Supreme Ct., Kings Cty

(Lewis, J.)

In an action by loft landlord for ejectment and use and occupancy, landlord moved for summary judgment on its ejectment claim and to confirm a referee's report fixing the amount of use and occupancy. The court granted landlord's motions, holding that tenant was not entitled to the protection of the Loft Law or the Emergency Tenant Protection Act (ETPA).

In 1997, landlord entered into a commercial lease with tenants for loft spaces in a building with a commercial certificate of occupancy. The lease provided that fixtures would become the property of the landlord upon expiration of the lease, which was set at Jan. 31, 2002. Tenants used the spaces for residential purposes. At the expiration of the lease term, landlord sought to recover possession. Tenants resisted, contending that they were protected by rent regulation statutes, and also sought reimbursement for fixtures they had installed.

In awarding summary judgment to landlord, the court relied on Wolinsky v. Kee Yip Realty Corp., 2 NY2d 487, for the propositions first, that tenants were not entitled to protection of the Loft Law because their tenancies did not exist during the statutory window period of April 1, 1980 to Dec. 1, 1981, and second, that tenants' illegal conversion did not fall within the ambit of the ETPA. As a result, landlord was entitled to possession at the expiration of the lease term, and to enforce the provision of the lease with respect to fixtures. The court also held that despite the absence of a residential certificate of occupancy or multiple dwelling registration, landlord was entitled to recover use and occupancy for the period since expiration of the lease. The court emphasized that landlord was in the process of legalizing residential use in the building, and that tenant's architect conceded that the building as a whole substantially conforms to building code standards. In light of these facts, the court concluded that tenants should not be permitted to occupy the premises without responsibility for paying rent. The court therefore confirmed the referee's report, which fixed use and occupancy at the amount of monthly rent specified as payable during the last year of the now-expired lease.

Lease Does Not Bar Partial Actual Eviction Claim

Sterling Investor Services, Inc. v. 1155 Nobo Associates, LLC

NYLJ 6/26/06, p. 32, col. 4

AppDiv, Second Dept

(memorandum opinion)

In an action by tenant for a judgment declaring that it was partially actually evicted from a portion of leased commercial premises, tenant appealed from Supreme Court's award of summary judgment to landlord. The Appellate Division modified to reinstate the complaint, holding that the lease provisions did not bar tenant from claiming a partial actual eviction.

Tenant leased the subject premises consisting of about 8000 square feet. The lease also gave tenant appurtenant rights to use a lunchroom, a conference room, a reception area, and an atrium corridor. Article 19 of the lease provided that there would be 'no liability on the part of the Landlord' for damages arising out of certain work performed by landlord. Exhibit B to the lease provided that when the phrases 'no liability to the tenant' and 'without liability to the tenant' appear in the lease, they mean that a tenant cannot claim an actual partial eviction.

When current landlord purchased the building landlord informed tenant of a number of proposed changes which would demolish the appurtenant areas and relocate them temporarily. Tenant then began to withhold rent, alleging partial actual eviction, and brought this declaratory judgment action. Tenant moved for summary judgment. Supreme Court, however, searched the record and awarded summary judgment to landlord.

In reversing, the Appellate Division rejected Supreme Court's reliance on Exhibit B of the lease to establish that tenant was not entitled to claim partial actual eviction. The court noted that the language in Exhibit B was not identical to the language in Article 19, and concluded that the difference in language was intentional. As a result, the court concluded that the language in article 19 did not preclude tenant from claiming partial actual eviction.

Tenant Not Entitled To Rent Paid After Expiration of Main Lease

JPMorganChase Bank, NA v. Rocar Realty Northeast, Inc.

NYLJ 6/30/06, p. 25, col. 1

Supreme Ct., N.Y. Cty

(Madden, J.)

In an action by subtenant against tenant and landlord for injunctive and declaratory relief, subtenant sought partial summary judgment on its counterclaim against main tenant for refund of rent. The court granted subtenant's motion, holding that under the terms of an agreement between subtenant and tenant, the latter was not entitled to rent paid after expiration of the main lease.

Landlord's predecessor entered into a 20-year ground lease with tenant. The lease, which gave tenant the right to renew for two additional 5-year terms, expired on Jan. 31, 2004. Tenant built a building on the premises, and subleased the building to a predecessor of subtenant Chase. The last sublease to Chase expired on Jan. 30, 2004. At the expiration of tenant's lease term, a dispute arose between landlord and tenant over tenant's right to renew, resulting in a holdover proceeding by landlord against tenant. Subtenant Chase, to protect its interest, executed two separate agreements. The first, executed March 19, 2004 between Chase and landlord, granted Chase the right to continue occupying the premises in contemplation of execution of a direct lease between landlord and tenant, and required Chase to pay use and occupancy for February and March 2004. The second, dated April 13, 2004 between Chase and tenant, acknowledged landlord's holdover proceeding, acknowledged that Chase had paid tenant rent for February and March 2004, and provided that tenant agreed that if the lease were adjudicated to have been terminated as of Jan. 31, 2004, tenant would refund to Chase the entire amount of the February and March rent, amounting to $33,097.20, while Chase agreed to pay future rent if a court determined that tenant had validly renewed the lease. In November 2004, tenant served Chase with a 10-day notice of default and rent demand, seeking payment of rent from April through November 2004. Chase then brought this action seeking inter-pleader relief with respect to conflicting and competing demands for rent and for use and occupancy during the identical period. Meanwhile, in May 2005, landlord was awarded summary judgment in landlord's holdover proceeding, concluding that the lease had expired and that tenant's then-current occupancy was based on a month-to-month tenancy.

In awarding summary judgment to Chase on its claim against tenant for rent paid for February and March 2004, the court rejected tenant's argument that by virtue of its month-to-month tenancy, the ground lease continued, rendering Chase liable under the terms of the April 13 agreement. The court held that the month-to-month tenancy did not extend the ground lease, which had clearly expired. Expiration triggered Chase's right to a refund under the April 13 agreement.

Domestic Partner Not Entitled to Name on Rent-Stabilized Lease

Zagrosik v. New York State Division of Housing and Community Renewal

NYLJ 7/5/06, p. 26, col. 3

Supreme Ct., N.Y. Cty

(Figueroa, J.)

In an article 78 proceeding, residential tenant sought to annul DHCR's determination denying his application to compel his landlord to add his domestic partner's name to his lease. The court dismissed the petition, holding that the Rent Stabilization Code does not extend to domestic partners the same rights it extends to spouses.

Tenant and his domestic partner have lived in the subject rent-stabilized apartment since 1993. They possess a certificate of domestic partnership. When tenant sought to add the partner's name to the lease, landlord refused, and DHCR concluded that domestic partner had no right to have his name added. Tenant then brought this article 78 proceeding.

In dismissing the proceeding, Supreme Court rejected the argument that Braschi v. Stahl Management , 74 NY2d 201, required the court to treat a domestic partner as a spouse. The court conceded that the regulation (and DHCR's decision in this case) gave the domestic partner succession rights to the subject apartment ' the same rights extended to a life partner in the Braschi case. But the court labeled 'incorrect' an interpretation of Braschi that would require DHCR to extend to the domestic partner the rights of a joint tenancy ' rights the statute extends only to spouses.

Loft Tenant Not Entitled to Statutory Protection

American Package Company, Inc. v. Kocik

NYLJ 7/5/06, p. 27, col. 1

Supreme Ct., Kings Cty

(Lewis, J.)

In an action by loft landlord for ejectment and use and occupancy, landlord moved for summary judgment on its ejectment claim and to confirm a referee's report fixing the amount of use and occupancy. The court granted landlord's motions, holding that tenant was not entitled to the protection of the Loft Law or the Emergency Tenant Protection Act (ETPA).

In 1997, landlord entered into a commercial lease with tenants for loft spaces in a building with a commercial certificate of occupancy. The lease provided that fixtures would become the property of the landlord upon expiration of the lease, which was set at Jan. 31, 2002. Tenants used the spaces for residential purposes. At the expiration of the lease term, landlord sought to recover possession. Tenants resisted, contending that they were protected by rent regulation statutes, and also sought reimbursement for fixtures they had installed.

In awarding summary judgment to landlord, the court relied on Wolinsky v. Kee Yip Realty Corp. , 2 NY2d 487, for the propositions first, that tenants were not entitled to protection of the Loft Law because their tenancies did not exist during the statutory window period of April 1, 1980 to Dec. 1, 1981, and second, that tenants' illegal conversion did not fall within the ambit of the ETPA. As a result, landlord was entitled to possession at the expiration of the lease term, and to enforce the provision of the lease with respect to fixtures. The court also held that despite the absence of a residential certificate of occupancy or multiple dwelling registration, landlord was entitled to recover use and occupancy for the period since expiration of the lease. The court emphasized that landlord was in the process of legalizing residential use in the building, and that tenant's architect conceded that the building as a whole substantially conforms to building code standards. In light of these facts, the court concluded that tenants should not be permitted to occupy the premises without responsibility for paying rent. The court therefore confirmed the referee's report, which fixed use and occupancy at the amount of monthly rent specified as payable during the last year of the now-expired lease.

Lease Does Not Bar Partial Actual Eviction Claim

Sterling Investor Services, Inc. v. 1155 Nobo Associates, LLC

NYLJ 6/26/06, p. 32, col. 4

AppDiv, Second Dept

(memorandum opinion)

In an action by tenant for a judgment declaring that it was partially actually evicted from a portion of leased commercial premises, tenant appealed from Supreme Court's award of summary judgment to landlord. The Appellate Division modified to reinstate the complaint, holding that the lease provisions did not bar tenant from claiming a partial actual eviction.

Tenant leased the subject premises consisting of about 8000 square feet. The lease also gave tenant appurtenant rights to use a lunchroom, a conference room, a reception area, and an atrium corridor. Article 19 of the lease provided that there would be 'no liability on the part of the Landlord' for damages arising out of certain work performed by landlord. Exhibit B to the lease provided that when the phrases 'no liability to the tenant' and 'without liability to the tenant' appear in the lease, they mean that a tenant cannot claim an actual partial eviction.

When current landlord purchased the building landlord informed tenant of a number of proposed changes which would demolish the appurtenant areas and relocate them temporarily. Tenant then began to withhold rent, alleging partial actual eviction, and brought this declaratory judgment action. Tenant moved for summary judgment. Supreme Court, however, searched the record and awarded summary judgment to landlord.

In reversing, the Appellate Division rejected Supreme Court's reliance on Exhibit B of the lease to establish that tenant was not entitled to claim partial actual eviction. The court noted that the language in Exhibit B was not identical to the language in Article 19, and concluded that the difference in language was intentional. As a result, the court concluded that the language in article 19 did not preclude tenant from claiming partial actual eviction.