Landlord & Tenant

Landlord May Not Use Self-Help in Absence of Lease Provision

1414 Holdings, LLC v. BMS-PSO, LLC

NYLJ 5/2/14, p. 28, col. 6

AppDiv, First Dept.

(memorandum opinion)

In an action by landlord for a preliminary injunction requiring tenant to remove patient records from the premises, landlord appealed from Supreme Court's order denying the preliminary injunction and granting tenant's motion for a preliminary injunction preventing landlord from using self-help to evict tenant. The Appellate Division modified to allow owner to enter tenant's premises to modify the building elevator to comply with the Americans with Disabilities Act (ADA), but otherwise denied affirmative relief to landlord.

Landlord's predecessor leased the 19th floor of an office building to tenant in 1996. The lease was for a 15-year term, and gave tenant the option to extend for two additional five-year terms. Tenant exercised the first option, and intended to exercise the second. The lease gave landlord the right to cancel if landlord intended to apply to the Department of Buildings (DOB) to demolish “all or substantially all” of the building, and provided that if landlord cancels, and fails to obtain a DOB permit before the effective date of the cancellation, the cancellation is void.

Current landlord purchased the building in 2011 for the purpose of converting it into a hotel. Landlord served tenant with a notice of cancellation effective July 31, 2012. About a month before the cancellation date, landlord brought this action seeking a preliminary injunction compelling tenant to remove patient records because it intended to cut off all public access to the building, and to withhold utilities, immediately after the cancellation date. Tenant counter-moved for a preliminary injunction preventing landlord from exercising self-help. Supreme Court granted tenant's motion and denied landlord's motion.

The Appellate Division upheld much of Supreme Court's grant of a preliminary injunction to tenant, holding that tenant had established a likelihood of success on its claim that landlord did not obtain a permit to demolish “all or substantially all” of the building before the effective date of the cancellation. The court modified, however, to permit the landlord to enter to do work necessary to make an elevator cab compliant with the ADA, noting that the lease allows landlord to change the arrangement of elevators in the building, and noting that the encroachment on tenant's space would be de minimis . The court also upheld Supreme Court's grant of a declaration that the owner is not entitled to evict tenant by use of self-help, noting that although a landlord may sometimes use self-help to peaceably regain possession of commercial premises, landlord may do so only if the lease expressly reserves that right to landlord. In this case, the lease did not provide any express authorization, so that landlord is not entitled to exercise self-help.

Wife Who Co-Owned Building Can Be Vicariously Liable

Rivera v. Neighborhood Partnership Housing Development Fund Co.

NYLJ 5/2/14, p. 28, col. 2

AppDiv, First Dept.

(memorandum opinion)

In an action by tenant for personal injuries suffered by her infant daughter as a result of exposure to lead paint hazards, tenant appealed from Supreme Court's grant of summary judgment to a Bronx landlord, and from a grant of summary judgment in favor of a tenant by the entirety who co-owned a single family home in Babylon in which tenant had resided. The co-owner of the Babylon house cross-appealed from Supreme Court's denial of his summary judgment motion. The Appellate Division modified to reinstate tenant's claim against both co-owners of the Babylon house, holding that tenant had raised questions of fact precluding summary judgment.

Tenant's action against two separate defendants alleged that her daughter suffered injuries as a result of exposure to lead-based paint in two locations, a Bronx apartment and a house in Babylon. The Babylon house was co-owned by Robert and Diane Dvorak as tenants by the entirety. Supreme Court granted summary judgment to the Bronx landlord, but concluded that Robert Dvorak had made repairs on the premises, knew that the building was constructed before the ban on lead-based paint, and knew that paint was peeling in the premises, which were to be occupied by a young child. On those facts, Supreme Court concluded that summary judgment was not warranted in favor of Robert, but the court did grant summary judgment against Diane.

In modifying, the Appellate Division held that a tenant by the entirety could be held vicariously liable for the actions of her husband. As a result, the court reinstated the claim against Diane Dvorak. The court affirmed the award of summary judgment to the Bronx landlord because the evidence established that landlord had gut-renovated the interior of the building and painted with lead-free paint.

Tax Documents Not Dispositive

Ansonia Associates Ltd. Partnership v. Unwin

NYLJ 4/15/14, p. 21, col. 1

AppTerm, First Dept.

( per curiam )

In landlord's nonprimary residence proceeding, landlord appealed from Civil Court's denial of its summary judgment motion. The Appellate Term affirmed, holding that issues surrounding tenant's primary residence should be decided at trial.

Tenant has occupied the subject rent-stabilized apartment for 35 years. She operated a wellness center from the apartment until 2011, and deducted her entire rent as a commercial expense on her tax return. She also maintained a rented house in Columbia County. Landlord brought this proceeding contending that tenant was not using the apartment as her primary residence, but tenant contended that she generally slept in the apartment five days a week, sleeping on a daybed that doubled as a therapy room during her business day. Based on these facts, Civil Court denied landlord's summary judgment motion.

In affirming, the Appellate Term held that tenant's statements in a tax document are not dispositive in a nonprimary residence proceeding. Even if a party to litigation may not generally take a position contrary to a position taken in an income tax return, that principle does not apply in a nonprimary residence proceeding where no single factor is determinative.

'

Landlord May Not Use Self-Help in Absence of Lease Provision

1414 Holdings, LLC v. BMS-PSO, LLC

NYLJ 5/2/14, p. 28, col. 6

AppDiv, First Dept.

(memorandum opinion)

In an action by landlord for a preliminary injunction requiring tenant to remove patient records from the premises, landlord appealed from Supreme Court's order denying the preliminary injunction and granting tenant's motion for a preliminary injunction preventing landlord from using self-help to evict tenant. The Appellate Division modified to allow owner to enter tenant's premises to modify the building elevator to comply with the Americans with Disabilities Act (ADA), but otherwise denied affirmative relief to landlord.

Landlord's predecessor leased the 19th floor of an office building to tenant in 1996. The lease was for a 15-year term, and gave tenant the option to extend for two additional five-year terms. Tenant exercised the first option, and intended to exercise the second. The lease gave landlord the right to cancel if landlord intended to apply to the Department of Buildings (DOB) to demolish “all or substantially all” of the building, and provided that if landlord cancels, and fails to obtain a DOB permit before the effective date of the cancellation, the cancellation is void.

Current landlord purchased the building in 2011 for the purpose of converting it into a hotel. Landlord served tenant with a notice of cancellation effective July 31, 2012. About a month before the cancellation date, landlord brought this action seeking a preliminary injunction compelling tenant to remove patient records because it intended to cut off all public access to the building, and to withhold utilities, immediately after the cancellation date. Tenant counter-moved for a preliminary injunction preventing landlord from exercising self-help. Supreme Court granted tenant's motion and denied landlord's motion.

The Appellate Division upheld much of Supreme Court's grant of a preliminary injunction to tenant, holding that tenant had established a likelihood of success on its claim that landlord did not obtain a permit to demolish “all or substantially all” of the building before the effective date of the cancellation. The court modified, however, to permit the landlord to enter to do work necessary to make an elevator cab compliant with the ADA, noting that the lease allows landlord to change the arrangement of elevators in the building, and noting that the encroachment on tenant's space would be de minimis . The court also upheld Supreme Court's grant of a declaration that the owner is not entitled to evict tenant by use of self-help, noting that although a landlord may sometimes use self-help to peaceably regain possession of commercial premises, landlord may do so only if the lease expressly reserves that right to landlord. In this case, the lease did not provide any express authorization, so that landlord is not entitled to exercise self-help.

Wife Who Co-Owned Building Can Be Vicariously Liable

Rivera v. Neighborhood Partnership Housing Development Fund Co.

NYLJ 5/2/14, p. 28, col. 2

AppDiv, First Dept.

(memorandum opinion)

In an action by tenant for personal injuries suffered by her infant daughter as a result of exposure to lead paint hazards, tenant appealed from Supreme Court's grant of summary judgment to a Bronx landlord, and from a grant of summary judgment in favor of a tenant by the entirety who co-owned a single family home in Babylon in which tenant had resided. The co-owner of the Babylon house cross-appealed from Supreme Court's denial of his summary judgment motion. The Appellate Division modified to reinstate tenant's claim against both co-owners of the Babylon house, holding that tenant had raised questions of fact precluding summary judgment.

Tenant's action against two separate defendants alleged that her daughter suffered injuries as a result of exposure to lead-based paint in two locations, a Bronx apartment and a house in Babylon. The Babylon house was co-owned by Robert and Diane Dvorak as tenants by the entirety. Supreme Court granted summary judgment to the Bronx landlord, but concluded that Robert Dvorak had made repairs on the premises, knew that the building was constructed before the ban on lead-based paint, and knew that paint was peeling in the premises, which were to be occupied by a young child. On those facts, Supreme Court concluded that summary judgment was not warranted in favor of Robert, but the court did grant summary judgment against Diane.

In modifying, the Appellate Division held that a tenant by the entirety could be held vicariously liable for the actions of her husband. As a result, the court reinstated the claim against Diane Dvorak. The court affirmed the award of summary judgment to the Bronx landlord because the evidence established that landlord had gut-renovated the interior of the building and painted with lead-free paint.

Tax Documents Not Dispositive

Ansonia Associates Ltd. Partnership v. Unwin

NYLJ 4/15/14, p. 21, col. 1

AppTerm, First Dept.

( per curiam )

In landlord's nonprimary residence proceeding, landlord appealed from Civil Court's denial of its summary judgment motion. The Appellate Term affirmed, holding that issues surrounding tenant's primary residence should be decided at trial.

Tenant has occupied the subject rent-stabilized apartment for 35 years. She operated a wellness center from the apartment until 2011, and deducted her entire rent as a commercial expense on her tax return. She also maintained a rented house in Columbia County. Landlord brought this proceeding contending that tenant was not using the apartment as her primary residence, but tenant contended that she generally slept in the apartment five days a week, sleeping on a daybed that doubled as a therapy room during her business day. Based on these facts, Civil Court denied landlord's summary judgment motion.

In affirming, the Appellate Term held that tenant's statements in a tax document are not dispositive in a nonprimary residence proceeding. Even if a party to litigation may not generally take a position contrary to a position taken in an income tax return, that principle does not apply in a nonprimary residence proceeding where no single factor is determinative.

'