You are here: / Landlord-Tenant
,

DEFENDANT OUT-OF-POSSESSION LANDLORD’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED; THE LEASE DID NOT OBLIGATE THE LANDLORD TO MAINTAIN THE AREA AND NO STATUTORY VIOLATION WAS ALLEGED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant out-of-possession landlord’s motion for summary judgment in this slip and fall case should have been granted. Plaintiff allegedly slipped on ice which formed from a leak in a pipe in a walk-in freezer. The lease did not require the landlord to maintain the freezer. No statutory violation was alleged:

“An out-of-possession landlord is not liable for injuries that occur on its premises unless the landlord has retained control over the premises and has a duty imposed by statute or assumed by contract or a course of conduct'” … . Here, where the complaint sounds in common-law negligence and the plaintiff does not allege the violation of a statute, the defendants demonstrated their prima facie entitlement to judgment as a matter of law by establishing that they were an out-of-possession landlord that was not bound by contract or course of conduct to repair the allegedly dangerous condition … . The lease in this case specified that the “Landlord’s Obligations do not include the performance nor the payment of the costs for . . . the maintenance, repair and/or replacement of Freezer System or the replacement of the Refrigeration System at any time.” Mallet v City of New York, 2020 NY Slip Op 03220, Second Dept 6-10-20

 

,

THE OPTION TO RENEW THE LEASE WAS NOT ENFORCEABLE; IT WAS MERELY AN AGREEMENT TO AGREE (SECOND DEPT).

The Second Department, applying the “doctrine of definiteness” determined the option to renew the lease was not enforceable and the lease had therefore expired:

“The doctrine of definiteness or certainty is well established in contract law. In short, it means that a court cannot enforce a contract unless it is able to determine what in fact the parties have agreed to” … . Among the terms of a lease that must be known is the amount of rent that is to be paid … . The doctrine of definiteness, however, is not applied rigidly, and “where it is clear from the language of an agreement that the parties intended to be bound and there exists an objective method for supplying a missing term, the court should endeavor to hold the parties to their bargain” … . In the absence of an explicit contract term, the requirement of definiteness may be satisfied where: (1) the agreement itself sets forth an agreed methodology for determining the missing term within its four corners or (2) the agreement invites recourse to an objective extrinsic event, condition, or standard to ascertain the term … .

Here, the parties’ failure to set forth either the amount of rent to be paid during the renewal period, or an agreed formula, methodology, or objective extrinsic event by which that rent could be determined, rendered the option to renew an unenforceable agreement to agree … . Vizel v Vitale, 2020 NY Slip Op 03140, Second Dept 6-3-20

 

, , ,

HUMAN RESOURCES ADMINISTRATION SECURITY DEPOSIT VOUCHERS MUST BE ACCEPTED IN LIEU OF CASH DEPOSITS; TO REFUSE TO ACCEPT THE VOUCHERS VIOLATES THE NYC HUMAN RIGHTS LAW; THE VOUCHER PROGRAM DOES NOT VIOLATE THE SOCIAL SERVICES LAW OR THE URSTADT LAW (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Webber, determined plaintiff Estates, a leasing agent for multi-family apartment buildings in New York City, must accept a Human Resources Administration (HRA) security deposit voucher for an apartment. When the potential tenant, Walters, applied for an apartment, plaintiff’s employee told her the security deposit must be cash:

We find that the court correctly concluded that HRA’s security deposit vouchers are a “lawful source of income” under the City HRL [Human Rights Law] (Administrative Code § 8-102) and are therefore included in the HRL’s prohibition against discrimination by a landlord against a prospective tenant because of “any lawful source of income” (Administrative Code § 8-107[5][a][1]). “The term lawful source of income’ includes income derived from social security, or any form of federal, state or local public assistance or housing assistance including section 8 vouchers” … .

Administrative Code § 8-107(5) prohibits a landlord from refusing to accept a Section 8 voucher from an existing tenant or refusing a lease to a prospective tenant who seeks to pay rent with a Section 8 voucher … . …

Supreme Court correctly found that HRA’s security deposit voucher program does not violate Social Services Law § 143-c. * * *

Finally, we find that the voucher program does not violate the Urstadt Law (McKinney’s Uncons Laws of NY § 8605). “The Urstadt Law was intended to check City attempts, whether by local law or regulation, to expand the set of buildings subject to rent control or stabilization'” … . Here, a landlord’s acceptance of such security deposit vouchers “will have no impact in expanding the buildings subject to the rent stabilization law or expanding regulation under the rent laws” … . Estates NY Real Estate Servs. LLC v City of New York, 2020 NY Slip Op 03093, First Dept 5-28-20

 

, , ,

OUT OF POSSESSION LANDLORD MAY BE LIABLE IN THIS SIDEWALK SLIP AND FALL CASE PURSUANT TO A 2019 COURT OF APPEALS DECISION; VIOLATION OF NYC ADMINISTRATIVE CODE CAN BE RAISED FOR THE FIRST TIME IN OPPOSITION TO SUMMARY JUDGMENT MOTION; QUESTION OF FACT ABOUT THE APPLICABILITY OF THE STORM IN PROGRESS DOCTRINE (FIRST DEPT). ​

The First Department, reversing Supreme Court in this sidewalk slip and fall case, determined: (1) a 2019 Court of Appeals decision clarified the defendant out-of-possession landlord’s duty to keep sidewalks safe, notwithstanding any maintenance arrangement with a tenant; (2) although the plaintiff was required to allege the defendant violated the NYC Administrative Code and failed to do so, plaintiff could rely on the Code provision in opposition to defendant’s summary judgment motion; and (3) plaintiff raised a question of fact whether the ice condition existed before the alleged storm in progress at or near the time of the fall:

… [T]he court’s determination that defendant was entitled to summary judgment dismissing the complaint on the ground that he is an out-of-possession landlord is no longer sound in light of the Court of Appeals’s decision in Xiang Fu He v Troon Mgt., Inc. (34 NY3d 167 [2019]). …[E]ven if … plaintiff was required to plead defendant’s violation of Administrative Code of City of New York § 7-210 – which he undisputedly failed to do – plaintiff’s reliance thereon for the first time in opposition to defendant’s motion for summary judgment was permissible, given that doing so did not raise any new theory of liability or prejudice … . Herrera v Vargas, 2020 NY Slip Op 03082, First Dept 5-28-20

 

,

LEASE WAS AMBIGUOUS ABOUT TENANT’S RESPONSIBILITY FOR INSTALLATION OF A STORMWATER DETENTION SYSTEM AND THE LANDLORD’S EXTRINSIC EVIDENCE DID NOT ELIMINATE QUESTIONS OF FACT; SUPREME COURT SHOULD NOT HAVE GRANTED THE LANDLORD’S MOTION FOR SUMMARY JUDGMENT (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the terms of the lease were ambiguous and the extrinsic evidence submitted by the plaintiff landlord did not entitle the landlord to summary judgment. The landlord argued the defendant tenant was responsible under the lease for the installation of a stormwater detention system:

… [W]e cannot agree with Supreme Court’s conclusion that the lease unambiguously imposed a contractual responsibility on defendant, as tenant, to contract and pay for a new stormwater detention system, or that defendant was in default of the lease for failing to submit plans to that end … .

Given the ambiguity in the lease, resort to parol or extrinsic evidence is proper to discern the parties’ intent … . …

… [P]laintiff’s extrinsic evidence failed to resolve the lease ambiguity regarding responsibility for the new underground stormwater detention system, and did not “demonstrate the absence of any material issues of fact” in that regard … . Greene v Fast Eats Clifton Park, LLC, 2020 NY Slip Op 03055, Third Dept 5-27-20

 

,

A LEASE GUARANTY WHICH ALLOWS AMENDMENTS TO THE LEASE WITHOUT NOTICE TO THE GUARANTORS IS VALID AND ENFORCEABLE (SECOND DEPT).

The Second Department determined the guarantors of a lease, Cipolla and Mucci, were liable under the guaranty, even though amendments to the lease could be made without notice to the guarantors:

The plaintiff … submitted a guaranty signed by … Cipolla and Mucci … which provided that the undersigned would become guarantors of the prompt and faithful payment and performance of Corbel under the lease, and that no modifications or amendments to the lease would relieve the guarantors’ obligations … . …

The guaranty provided … that notice to or consent by the guarantors was not required for amendments respecting the lease. … “A guarantor is not relieved of his [or her] obligations where, as here, the written guarant[y] allows for changes in the terms of the guarant[y] and expressly waives notice to the guarantor of these changes” … . 2402 E. 69th St., LLC v Corbel Installations, Inc., 2020 NY Slip Op 02996, Second Dept 5-27-20

 

, ,

PLAINTIFF LANDLORD HAD AN ADEQUATE REMEDY AT LAW FOR AN ALLEGED BREACH OF THE LEASE BY THE TENANT; PLAINTIFF’S ALLEGED LOSS OF GOODWILL WAS NOT APPLICABLE; THE BALANCE OF EQUITIES FAVORED THE TENANT; THE PRELIMINARY INJUNCTION WAS NOT WARRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined a preliminary injunction was not warranted in this dispute over a lease. Defendant store leased space in plaintiff mall. The lease provided the store could terminate the lease before the end of the term if its gross sales were below a threshold. The store sought to terminate the lease on that ground, but the mall alleged the store’s gross sales did not fall below the threshold. The lease included a liquidated damages provision. The majority concluded the liquidated damages provision provided a remedy at law, the loss of goodwill was not applicable and the balance of the equities favored the store, not the mall. So the preliminary injunction should not have been granted:

… [T]he lease contains a liquidated damages provision that entitles plaintiff to certain money damages if defendants prematurely vacate the premises and cease operations. The lease also contains an integration clause stating that the lease is “the entire and only agreement between the parties.” Thus, because the lease specifically provides that plaintiff is entitled to certain money damages in the event that defendants vacate the premises in breach of the agreement—the very injury that serves as the predicate for plaintiff’s action—we conclude that plaintiff has an adequate remedy at law and, moreover, that plaintiff has not suffered irreparable harm because the liquidated damages clause was intended as the sole remedy for such a breach … .

We disagree with our dissenting colleagues that plaintiff established a likelihood of irreparable injury from the loss of goodwill that would occur if defendants were to cease operations by prematurely terminating the lease. The “loss of goodwill and damage to customer relationships, unlike the loss of specific sales, is not easily quantified or remedied by money damages” … and may warrant a finding of irreparable injury in cases such as those involving unfair competition tort claims … , the proposed demolition or alteration of the premises … , or the issuance of a Yellowstone injunction, in which it is a tenant, not the landlord, who seeks to enjoin the termination of a lease … . No such scenario is implicated here and, moreover, as already noted, the specific injury complained of by plaintiff was accounted for by the terms of the lease agreement. …

… [W]we conclude that the harm defendants will suffer if forced to keep their 6,000-square-foot store open against their will is greater than the injury plaintiff will suffer from the loss of one tenant in the mall, especially because plaintiff may still recoup its loss via the liquidated damages provision. Eastview Mall, LLC v Grace Holmes, Inc., 2020 NY Slip Op 02447, Fourth Dept 4-24-20

 

,

NOTWITHSTANDING THE TENANT’S LEASE-OBLIGATION TO KEEP THE SIDEWALK FREE OF ICE AND SNOW, THE LANDLORD HAD THE NONDELEGABLE DUTY TO KEEP A RAMP LEADING TO THE SIDEWALK IN A SAFE CONDITION IN THIS SLIP AND FALL CASE (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendant owner of the property leased by a restaurant had a nondelegable duty to keep a metal ramp leading from the restaurant to the sidewalk (a special use of the sidewalk) in a safe condition, notwithstanding the restaurant’s lease-obligation to remove ice and snow from the sidewalk. Plaintiff, a restaurant employee, slipped and fell on snow and ice on the ramp:

Plaintiff, an employee of the restaurant owned by third-party defendant, slipped and fell on snow and ice on a metal ramp leading from the side door of the restaurant to the sidewalk. Third-party defendant leases the ground floor and basement space from defendant landowner. The evidence shows that the ramp was erected over the public sidewalk alongside defendant’s building, and is not included in the diagram of the leased space. Further, the director of leasing for defendant’s property manager testified that the ramp was built for use by people with disabilities.

Notwithstanding any lease provisions obligating the restaurant to remove snow and ice from the sidewalk, defendant, as owner of the property abutting the sidewalk, had a nondelegable duty to keep the sidewalk, and any special uses made of the sidewalk, in a safe condition, including the removal of snow and ice … . Dembele v 373-381 Pas Assoc., LLC, 2020 NY Slip Op 02256, First Dept 4-9-20

 

,

OUT-OF-POSSESSION LANDLORD MAY BE LIABLE FOR PLAINTIFF’S SLIP AND FALL ON ICE WHICH FORMED ON THE STEP LEADING TO HER APARTMENT, DESPITE IT BEING PLAINTIFF’S RESPONSIBILITY TO REMOVE ICE AND SNOW FROM THE AREA (THIRD DEPT).

The Third Department, reversing Supreme Court, determined there was a question of fact whether defendant out-of-possession landlord is liable for plaintiff’s slip and fall on ice on a step leading to her apartment, despite it being plaintiff’s responsibility to remove ice and snow from the area. Plaintiff alleged the ice formed because of a leak in the porch roof:

… [P]laintiff contends that the condition that led to the formation of the ice patch was present and ascertainable for at least several days. …

… “[A] landlord has a duty to use ordinary care to keep those areas which are reserved and intended for the common use of the tenants and owner of the building and subject to the landlord’s control, i.e., the common areas, in a reasonably safe and suitable condition” … .

The roof here was not accessible or available for use by the tenants … , but the record indicates that the exterior of the building may have been within defendants’ control. Since purchasing the building in 1994, defendants had replaced the roof, replaced the gutter system along at least one side of the building and recoated part of the roof with tar. Defendant Timothy J. Charest, who was responsible for managing the property, testified that the gutter system was on the building when defendants purchased the property, but also testified that “if there were problems with a gutter” on the side of the building containing the apartment entrances, “there were repairs made,” though he could not remember when any such repairs had been made. Charest testified that he inspected the property approximately weekly, as well as after every storm. He did not keep records of his inspections but would do them on a weekday; plaintiff’s accident occurred on a Friday evening. Neither defendant could specifically identify when he had last inspected the property. Harkins v Tuma, 2020 NY Slip Op 02145, Third Dept 4-2-20

 

, , ,

GENERAL BUSINESS LAW 349 DECEPTIVE BUSINESS PRACTICES CAUSE OF ACTION IN THE CONTEXT OF A RENT STABILIZATION LAW (RSL) RENT-OVERCHARGE SUIT WAS PROPERLY DISMISSED (CT APP).

The Court of Appeals, over a partial dissent, determined the General Business Law 349 cause of action alleging deceptive business practices in the context of the Rent Stabilization Law (RSL) rent-overcharge suit was properly dismissed:

… General Business Law … , section 349 prohibits “deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state” … . We have held that this statute “cannot fairly be understood to mean that everyone who acts unlawfully, and does not admit the transgression, is being deceptive'” within the meaning of section 349 … . For purposes of this appeal, we assume without deciding that a claim may lie under General Business Law § 349 based upon a landlord’s alleged misrepresentation to the public that an apartment was exempt from rent regulation following deregulation in violation of the Rent Stabilization Law. Here, however, plaintiffs alleged only that defendants failed to admit that they violated the Rent Stabilization Law in deregulating plaintiffs’ apartments—three of which were, in fact, never deregulated—rather than any affirmative conduct that would tend to deceive consumers. Inasmuch as plaintiffs failed to allege more than “bare legal conclusions” … regarding the existence of consumer-oriented, deceptive acts … , their General Business Law claim was properly dismissed. Collazo v Netherland Prop. Assets LLC, 2020 NY Slip Op 02128, CtApp 4-2-20

 

Categories

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

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy