Landlord & Tenant

Restoration of Wall Separating Rent-Stabilized Apartments Requires Landlord's Consent

Bazin v. Walsam 240 Owner, LLC

NYLJ 2/17/10, p. 26, col. 1

AppDiv, First Dept.

(Opinion by Saxe, J.)

In rent-stabilized tenants' action for a judgment declaring that they are allowed to separate two apartments that they had previously combined into one, landlord appealed from Supreme Court's grant of tenant's motion to permit them to restore a wall that had previously separated the two apartments. The Appellate Division reversed and declared that tenants were prohibited from making the restoration without landlord's prior written consent.

In 1979, tenant and her then-husband became rent-stabilized tenants in apartment 8A of the subject building; four years later, they rented the adjoining apartment, 8B. The lease included a rider entitling tenants to construct an entrance from the foyer of one apartment to the foyer of the other. The lease provided that tenant deposit $700, which could be used for restoration of the proposed opening. Although tenant and her husband divorced, tenant and her daughter continued to live in the apartment. Landlord took no formal steps to combine the two apartments until 2002, when DHCR rejected landlord's effort to register the two apartments as a single. The following year, tenant rejected the renewal lease for apartment 8A, indicating that the lease in that apartment should be in her daughter's name. It does not appear that landlord ever executed a lease naming the daughter as a tenant. In 2005, landlord brought a petition for high-income rent deregulation of the combined apartment. DHCR denied the petition because the combined annual income of the tenants did not exceed $175,000, but DHCR acknowledged that the two apartments were a combined living unit for purposes of rent deregulation. Tenants then sought to restore the wall between the apartments, but landlord objected and began returning the daughter's rent checks for apartment 8A. Tenants then brought this declaratory judgment action. Supreme Court granted tenants' motion for permission to restore the wall, and landlord appealed.

In reversing, the First Department relied on paragraph 10 of the standard form lease, which provides that tenant may not make any changes to the apartment without landlord's written consent. The court rejected Supreme Court's reliance on paragraph 9B, which requires tenant to restore and repair to its original condition portions of the apartment “affected by those installations and removals,” holding that the word “those” referred only to installations mentioned earlier in paragraph 9B ' wall covering, cabinets, bookcases, etc. The court went on to conclude that a provision permitting an alteration should not be read implicitly to allow reversal of the alteration without specific permission. As a result, the court declared that tenant was not entitled to restore the wall between the two apartments.

Whether Defective Condition Required Structural Repair Is a Question of Fact

Rapp v. 136 Oak Street Drive Associates

NYLJ 2/23/10, p. 36, col. 2

AppDiv, Second Dept.

(memorandum opinion)

In an action for personal injuries against a commercial landlord, landlord appealed from Supreme Court's denial of its summary judgment motion. The Appellate Division affirmed, holding that whether the alleged defective condition would entail a structural repair was a question of fact that precluded summary judgment.

The victim slipped and fell in a parking lot leased by his employer from defendant landlord. Victim alleged that the injury was caused by a drain spout that redirected water from the building's roof into the parking lot rather than the street. While in the parking lot, the water froze, allegedly leading to the injury. Victim alleged that the defect was “structural” in nature, and that because the lease required landlord to make “structural repairs,” landlord was liable for injuries caused by its failure to make those repairs. Supreme Court denied landlord's summary judgment motion.

In affirming, the Appellate Division started by noting that a landlord is liable for injury caused by a defective or dangerous condition if the landlord has a statutory or contractual duty to maintain the premises in repair and reserves the right to enter for inspection and repair. The court explained that to prevail, tenant would also have to establish that landlord had notice of the condition and an opportunity to repair it. In this case, the court concluded that questions of fact remained about whether the alleged condition was the result of one that required a structural repair, and whether landlord had notice of the defective condition. As a result, landlord had not established a right to summary judgment.

Restoration of Wall Separating Rent-Stabilized Apartments Requires Landlord's Consent

Bazin v. Walsam 240 Owner, LLC

NYLJ 2/17/10, p. 26, col. 1

AppDiv, First Dept.

(Opinion by Saxe, J.)

In rent-stabilized tenants' action for a judgment declaring that they are allowed to separate two apartments that they had previously combined into one, landlord appealed from Supreme Court's grant of tenant's motion to permit them to restore a wall that had previously separated the two apartments. The Appellate Division reversed and declared that tenants were prohibited from making the restoration without landlord's prior written consent.

In 1979, tenant and her then-husband became rent-stabilized tenants in apartment 8A of the subject building; four years later, they rented the adjoining apartment, 8B. The lease included a rider entitling tenants to construct an entrance from the foyer of one apartment to the foyer of the other. The lease provided that tenant deposit $700, which could be used for restoration of the proposed opening. Although tenant and her husband divorced, tenant and her daughter continued to live in the apartment. Landlord took no formal steps to combine the two apartments until 2002, when DHCR rejected landlord's effort to register the two apartments as a single. The following year, tenant rejected the renewal lease for apartment 8A, indicating that the lease in that apartment should be in her daughter's name. It does not appear that landlord ever executed a lease naming the daughter as a tenant. In 2005, landlord brought a petition for high-income rent deregulation of the combined apartment. DHCR denied the petition because the combined annual income of the tenants did not exceed $175,000, but DHCR acknowledged that the two apartments were a combined living unit for purposes of rent deregulation. Tenants then sought to restore the wall between the apartments, but landlord objected and began returning the daughter's rent checks for apartment 8A. Tenants then brought this declaratory judgment action. Supreme Court granted tenants' motion for permission to restore the wall, and landlord appealed.

In reversing, the First Department relied on paragraph 10 of the standard form lease, which provides that tenant may not make any changes to the apartment without landlord's written consent. The court rejected Supreme Court's reliance on paragraph 9B, which requires tenant to restore and repair to its original condition portions of the apartment “affected by those installations and removals,” holding that the word “those” referred only to installations mentioned earlier in paragraph 9B ' wall covering, cabinets, bookcases, etc. The court went on to conclude that a provision permitting an alteration should not be read implicitly to allow reversal of the alteration without specific permission. As a result, the court declared that tenant was not entitled to restore the wall between the two apartments.

Whether Defective Condition Required Structural Repair Is a Question of Fact

Rapp v. 136 Oak Street Drive Associates

NYLJ 2/23/10, p. 36, col. 2

AppDiv, Second Dept.

(memorandum opinion)

In an action for personal injuries against a commercial landlord, landlord appealed from Supreme Court's denial of its summary judgment motion. The Appellate Division affirmed, holding that whether the alleged defective condition would entail a structural repair was a question of fact that precluded summary judgment.

The victim slipped and fell in a parking lot leased by his employer from defendant landlord. Victim alleged that the injury was caused by a drain spout that redirected water from the building's roof into the parking lot rather than the street. While in the parking lot, the water froze, allegedly leading to the injury. Victim alleged that the defect was “structural” in nature, and that because the lease required landlord to make “structural repairs,” landlord was liable for injuries caused by its failure to make those repairs. Supreme Court denied landlord's summary judgment motion.

In affirming, the Appellate Division started by noting that a landlord is liable for injury caused by a defective or dangerous condition if the landlord has a statutory or contractual duty to maintain the premises in repair and reserves the right to enter for inspection and repair. The court explained that to prevail, tenant would also have to establish that landlord had notice of the condition and an opportunity to repair it. In this case, the court concluded that questions of fact remained about whether the alleged condition was the result of one that required a structural repair, and whether landlord had notice of the defective condition. As a result, landlord had not established a right to summary judgment.