You are here: / Landlord-Tenant
image_pdfPDF Friendly Versionimage_printPrint Friendly Version
,

A NON-DEFECTIVE CELLAR DOOR CLOSED AND STRUCK PLAINTIFF’S HEAD; THE LEASE DID NOT REQUIRE THE DEFENDANT OUT-OF-POSSESSION LANDLORD TO MAINTAIN THE PREMISES; AND THERE WAS NO STRUCTURAL DEFECT; THE LANDLORD’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendant out-of-possession landlord (West 16th) was not liable for an injury from a non-defective cellar door which closed and struck plaintiff’s head:

It is well established that an out-of-possession landlord like West 16th “is generally not liable for negligence with respect to the condition of the demised premises unless it (1) is contractually obligated to make repairs or maintain the premises, or (2) has a contractual right to reenter, inspect and make needed repairs and liability is based on a significant structural or design defect that is contrary to a specific statutory safety provision” … .

The lease did not obligate West 16th to maintain or repair the cellar doors or to install an auxiliary safety device on the cellar doors, which were fully functional and not broken in any way. …

Further, the alleged defect is not a structural defect contrary to a specific statutory safety provision. … [W]e have previously held that the failure to install a safety device to hold such doors open—the precise negligence alleged against West 16th herein—was “not a structural defect contrary to a specific statutory safety provision” … . Matias v West 16th Realty LLC, 2020 NY Slip Op 08000, First Dept 12-29-20

 

/0 Comments/by
, ,

ONCE THE PLAINTIFFS-TENANTS PROPERLY SOUGHT TO EXERCISE THEIR OPTION TO PURCHASE, THE LANDLORD, WHO IMPROPERLY REFUSED TO HONOR THE OPTION, NO LONGER HAD A RIGHT TO USE AND OCCUPANCY PAYMENTS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs’ cause of action for return of the rent paid to defendant after the plaintiffs exercised their option to purchase the property should have been granted. Plaintiffs were defendant landlord’s tenants. Plaintiffs sought to exercise an option to purchase the property which was in the lease. Once the plaintiffs properly exercised the option to purchase, the landlord, who refused to honor the option, could no longer seek payment for plaintiffs’ use and occupancy:

… “[I]t is well settled that the legal owner of real property is not entitled to an award for use and occupancy from a contract vendee in possession unless there also exists a landlord-tenant relationship between the parties” … . Under the merger doctrine, “execution of a contract of sale [for real property] between landlord and tenant serves to merge the landlord-tenant relationship into the vendor-vendee relationship and thus effectively terminates the former, unless the parties clearly intend the contrary result” … . “An intention to deviate from the general rule and to avoid a merger may be directly expressed in the agreement or may be inferred from a medley of factors such as the terms of the agreement, the circumstances of its making, and the subsequent behavior of the parties” … .

Here … the parties did not express an intention to deviate from the general rule or to avoid a merger upon the exercise of the purchase option. To the contrary, the terms of the rider provided, in relevant part, that “[i]n the event that Tenant decides not to exercise its option to purchase, all provisions herein remain in full force and effect and Tenant remains liable for all payments hereunder, including but not limited to rent” … . Since the plaintiffs validly exercised their option to purchase on July 21, 2015, and became a contract vendee in possession, it follows that the landlord-tenant relationship terminated on that date by application of the merger doctrine … . Blackburn Food Corp. v Ardi, Inc., 2020 NY Slip Op 07850, Second Dept 12-23-20

 

/by
,

UNDER THE TERMS OF THE SURRENDER AGREEMENT THE TENANT OWED THE LANDLORD AN ADDITIONAL $175,000; UPON DEFENDANT’S DEFAULT, THE PLAINTIFF SUED FOR THE CONTRACTUAL LIQUIDATED DAMAGES OF OVER $1,000,000; THE JUDGMENT FOR $175,000 WAS UPHELD; THE LIQUIDATED DAMAGES OF OVER $1,000,000 VIOLATED THE PUBLIC POLICY AGAINST NON-STATUTORY PENALTIES AND FORFEITURES (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a three-judge dissent, determined the liquidated damages provision of the landlord-tenant surrender agreement violated the public policy against penalties or forfeitures for which there is no statutory penalty. Defendant-tenant, a grocery store chain, entered a surrender agreement with plaintiff-landlord which allowed defendant to get out from under the lease by making certain installment payments. Defendant defaulted on some of the payments (approximately $175,000) and plaintiff sought to recover liquidated damages of over $1,000,000. Defendant had timely surrendered the premises and it had been relet. Supreme Court had denied plaintiff’s motion for summary judgment and granted defendant’s cross-motion agreeing to pay $175,000:

Under our well-established rules of contract, the Surrender Agreement’s liquidated damages provision does not fairly compensate plaintiff for defendant’s delayed installment payments. The provision calls for a sum more than sevenfold the amount due if defendant had complied fully with the Surrender Agreement. We cannot enforce such an obviously and grossly disproportionate award without offending our State’s public policy against “the imposition of penalties or forfeitures for which there is no statutory authority” … . Accordingly, there was no error in rejecting plaintiff’s liquidated damages provision. Trustees of Columbia Univ. in the City of N.Y. v D’Agostino Supermarkets, Inc., 2020 NY Slip Op 06937, Ct App 11-24-20

 

/by
,

THE LANDLORD DID NOT HAVE NOTICE OF ANY PRIOR ROBBERIES OCCURRING IN THE BUILDING, THEREFORE THE TENANT-ROBBERY-VICTIM’S COMPLAINT WAS PROPERLY DISMISSED (SECOND DEPT).

The Second Department determined the landlord defendants were entitled to summary judgment dismissing the complaint by a tenant stemming from a robbery by another tenant and others. Defendant landlord demonstrated it did not have notice of any prior similar criminal activity in the building:

A landlord is not required to insure the safety of tenants or visitors … . However, “[l]andlords have a common-law duty to take minimal precautions to protect tenants from foreseeable harm, including foreseeable criminal conduct by a third person” … . “To establish that criminal acts were foreseeable, the criminal conduct at issue must be shown to be reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location” … . In the absence of evidentiary proof of notice of prior criminal activity, the owner’s duty reasonably to protect those using the premises from such activity never arises … . “The question of the scope of an alleged tort-feasor’s duty is, in the first instance, a legal issue for the court to resolve” … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they lacked notice of the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject premises … . Markov v Grecian Gardens Co., 2020 NY Slip Op 06771, Second Dept 11-18-20

 

/by
, ,

THE STATE, AS AN OUT-OF-POSSESSION LANDLORD, FAILED TO DEMONSTRATE THE INDEPENDENT CONTRACTOR HIRED TO DO RENOVATIONS DID NOT CREATE THE DANGEROUS CONDITION WHICH INJURED CLAIMANT; THE STATE’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing the Court of Claims, determined the defendant (New York State) was an out-of-possession landlord with respect to a public restroom at a state park. Plaintiff alleged a heavy trash receptacle fell from the wall. The Court of Claims had granted the state’s motion for summary judgment. But the Second Department held there was a question of fact whether the independent contractor hired by the state to renovate the restroom created the dangerous condition:

“While an out-of-possession landowner is generally not responsible for injuries that occur on its premises unless the landowner has retained control over the premises and is contractually or statutorily obligated to repair or maintain the premises or has assumed a duty to repair or maintain the premises by virtue of a course of conduct, liability may attach to an out-of-possession owner who has affirmatively created a dangerous condition or defect” … . Here, the defendant failed to establish its prima facie entitlement to judgment as a matter of law dismissing so much of the claim as alleged negligence because it failed to submit evidence showing that the independent contractor that the defendant hired to renovate the subject restroom did not cause the alleged dangerous condition  … . Cintron v State of New York, 2020 NY Slip Op 06486, Second Dept 11-12-20

 

/by
,

DEFENDANT LANDLORD NOT LIABLE FOR PLAINTIFF’S FALL OUT OF A WINDOW; NO ALLEGATION OF THE VIOLATION OF ANY RULE, REGULATION, CODE OR STANDARD (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant property owner was not liable for plaintiff’s fall out of a window to the sidewalk below:

The record demonstrates that defendants may not be held liable for the injuries sustained by plaintiff when, upon tripping over speaker wires, he fell out of his bedroom window and onto the sidewalk below. Defendants met their burden for summary judgment by submitting evidence that the window, neither by its configuration or condition, presented a hazard in and of itself, and that defendants had no statutory or common-law duty to install window guards or stops for the benefit of adult plaintiff …

Plaintiff’s expert’s affidavit was insufficient to defeat the motion for summary judgment as it was not based on any rules, regulations, codes, standards or on the factual record … . Fraser v Reclaim Hous. Dev. Fund Corp., 2020 NY Slip Op 05135, First Dept 9-29-20

 

/by
, ,

ALTHOUGH THE TENANT HAD VIOLATED CERTAIN PROVISIONS OF THE LEASE, THE EVICTION PENALTY SHOCKED THE CONSCIENCE AS A MATTER OF LAW (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, over a dissent, determined the housing authority’s (THA’s) eviction of petitioner was too severe a penalty for her alleged sporadic failure to make timely rent payments, her alleged failure to allow an exterminator to enter the apartment, and her single allegedly “rude and loud” phone conversation with a THA employee. The dissenter argued eviction was an appropriate penalty:

Here, although the petitioner made late rental payments during the subject period, she did eventually pay all of the rent due, as well as the fees that had accrued on the account. Moreover, the record establishes that during the subject period, the amount of the petitioner’s rent fluctuated monthly, with little advance notice, such that her December 2015 rent was nearly three times as much as her September 2015 rent. …

… [T]he two isolated incidents concerning the exterminator and the offensive telephone conversation were not proportionate to the penalty of eviction. First, although the petitioner denied the exterminator entry to her apartment on March 14, 2016, the THA’s evidence otherwise established that the petitioner was the one who had requested treatment for bedbugs, she fully complied with the first treatment, and over several years of biweekly extermination for other pests, she had never denied the exterminator entry … . …

… [T]he petitioner’s single threat of violence occurred in a heated telephone conversation, immediately before the petitioner hung up in frustration and anger. The THA employee to whom the comment was directed testified at the hearing that she found the comment “[e]xtraordinary and extremely rude,” but she did not testify that she was frightened or that she understood the comment to be a genuine threat of violence. …

The penalty imposed is so grave in its impact on the petitioner that it is disproportionate to the misconduct, or the risk of harm to the THA or the public. Under the circumstances of this case, the penalty of termination of the petitioner’s tenancy is so disproportionate to the offenses committed as to be shocking to the judicial conscience as a matter of law … . Matter of Jacobs v Tuckahoe Hous. Auth., 2020 NY Slip Op 04392, Second Dept 8-5-20

 

/by
, , ,

THE 2009 ROBERTS CASE APPLIES RETROACTIVELY TO RENT OVERCHARGES STEMMING FROM THE RENTAL OF DEREGULATED APARTMENTS BY LANDLORDS RECEIVING J-51 TAX BENEFITS; THE OVERCHARGES HERE MUST BE RE-CALCULATED IN ACCORDANCE WITH A RECENT RULING BY THE COURT OF APPEALS; THE CLASS OF TENANTS IN THIS RENT OVERCHARGE ACTION SHOULD NOT HAVE BEEN EXPANDED BY SUPREME COURT (FIRST DEPT).

The First Department, modifying Supreme Court, in a full-fledged opinion by Justice Richter, determined: (1) Roberts v Thishman, 13 NY3d 270 applies retroactively to landlords who rent deregulated apartments while receiving J-51 tax benefits; (2) the class of tenants bringing the rent-overcharge action should not have been expanded by Supreme Court; and (3) Supreme Court must re-calculate the rent overcharges in accordance with the recent Court of Appeals ruling in Matter of Regina, 2020 NYSlipOp 02127:

In Gersten v 56 7th Ave. LLC (88 AD3d 189, 198 [1st Dept 2011]), this Court held that Roberts should be applied retroactively because the decision simply interpreted a statute that had been in effect for a number of years, and did not establish a new principle of law.  * * *

In Matter of Regina … , the Court of Appeals determined that “the overcharge calculation amendments [in the HSTPA (HousiNg Stability and Tenant Protection Act)] cannot be applied retroactively to overcharges that occurred prior to their enactment.” The Court also resolved a split in this Department as to what rent records can be reviewed to determine rents and overcharges in Roberts cases … . Regina concluded that “under pre-HSTPA law, the four-year lookback rule and standard method of calculating legal regulated rent govern in Roberts overcharge cases, absent fraud” … .Accordingly, we … remand the matter for the court to set forth a methodology consistent with the Rent Stabilization Law as interpreted by the Court of Appeals in Regina. …

… [T]he motion court improvidently exercised its discretion in expanding the class. The court’s order failed to analyze whether class action status was warranted based on the criteria set forth in CPLR 901 and CPLR 902. Conducting that analysis ourselves, we find that the redefined class represents such a fundamental change in the theory of plaintiffs’ case that expansion of the class would be improper. Dugan v London Terrace Gardens, L.P., 2020 NY Slip Op 04239, First Dept 7-23-20

 

/by
,

THE LANDLORD AND PROPERTY MANAGER DEMONSTRATED THE POWER-OPERATED DOOR WHICH ALLEGEDLY STRUCK PLAINTIFF WAS NOT DEFECTIVE AND THEY HAD NO NOTICE OF ANY DEFECTS (SECOND DEPT).

The Second Department determined the landlord (North Shore Towers) and the property manager (Greenthal Management) demonstrated the power-operated door which allegedly struck plaintiff as she walked through the doorway was not defective. Therefore the defendants’ motion for summary judgment was properly granted:

A landowner has a duty to maintain its property in a reasonably safe condition to prevent the occurrence of foreseeable injuries … . “In order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that a defective condition existed and that the landowner affirmatively created the condition or had actual or constructive notice of its existence” … .

Here, North Shore Towers and Greenthal Management established their prima facie entitlement to judgment as a matter of law by demonstrating that the subject door did not constitute a dangerous or defective condition … .. In support of their motion, they submitted evidence that they conducted daily inspections of the door, that the door activating system had been fully replaced two months before the incident, that, after the new system had been installed, there had been no complaints of the door malfunctioning prior to the incident, and that the door functioned in accordance with industry standards. Alkon v North Shore Towers Apts. Inc., 2020 NY Slip Op 03883, Second Dept 7-15-20

 

/by
, , ,

CAUSES OF ACTION FOR WRONGFUL EVICTION AND TRESPASS WERE PROPERLY ALLEGED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the causes of action against all but two of the defendants should have been dismissed. Defendant alleged she had an arrangement with the landlord which allowed her to stay in the basement of the premises rent-free in exchange for maintenance of the property. When the landlord died, the landlord’s wife (Brigitte) changed the locks. The Second Department held that the causes of action for wrongful eviction against the landlord’s wife and estate, and the trespass against the landlord’s wife, were sufficiently alleged. However, the causes of action for nuisance, invasion of privacy (Civil Rights Law), and false arrest were not sufficiently alleged. The court also noted that there is no civil cause of action for harassment in New York:

… [T]he plaintiff’s allegation that she performed maintenance on the building in exchange for the exclusive use and possession of the basement, yard, and two closets, and that this arrangement continued following the expiration of the lease … , indicated that a month-to-month tenancy was created and was in effect for as long as she remained in possession of the premises (see Real Property Law § 232-c …), which, according to the complaint, was until March 2017, when she allegedly was wrongfully evicted from the premises. The plaintiff’s allegation that in March 2017, Brigitte changed the locks on the door of the building and refused to provide keys to the plaintiff and permitted her entry into the basement through the cellar door only in response to the plaintiff contacting the police in May 2017, suggests that Brigitte, in effect, acting as agent for the estate, resorted to self-help measures to evict the plaintiff from the premises (see RPAPL 711, 853 …). The complaint, therefore, adequately stated a cause of action alleging wrongful eviction against Brigitte and the estate … . …

The plaintiff’s allegation that … Brigitte entered the basement and yard whenever she wanted for no reason and disturbed the plaintiff’s personal property in the basement sufficiently stated a cause of action alleging trespass … . Trec v Cazares, 2020 NY Slip Op 03941, Second Dept 7-15-20

 

/by

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

Copyright © 2021 New York Appellate Digest, LLC
Site by CurlyHost | Privacy Policy