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LETTER AGREEMENT REGARDING A LEASE WAS NOT AN ENFORCEABLE CONTRACT; RATHER IT WAS AN AGREEMENT TO AGREE (SECOND DEPT).

The Second Department determined a letter agreement regarding a lease was not an enforceable contract but rather was an agreement to agree:

In a document dated June 27, 2012 (hereinafter the 2012 letter agreement), the parties “consolidate[d] all existing letter agreements to the same expiration date” of February 28, 2015. The 2012 letter agreement also stated that the terms of the lease were “extended to now terminate on Feb. 28, 2030,” with “terms to be determined at the expiration of this initial lease consolidation period.” The 2012 letter agreement further stated that any annual percentage increase in rent will not be less than five percent and will not exceed eight percent. …

A “mere agreement to agree, in which a material term is left for future negotiations, is unenforceable” … . “This is especially true of the amount to be paid for the sale or lease of real property” … . An agreement is not enforceable as a lease unless all of the essential terms are agreed upon, and if “any of these essential terms are missing and are not otherwise discernible by objective means, a lease has not been created” … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting, inter alia, a copy of the 2012 letter agreement, which demonstrated that the renewal provision was an unenforceable agreement to agree … . Reis v J.B. Kaufman Realty Co., LLC, 2020 NY Slip Op 01657, Second Dept 3-11-20

 

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THERE WAS EVIDENCE THE WATER ON THE FLOOR WAS A RECURRENT DANGEROUS CONDITION; PLAINTIFF SHOULD HAVE BEEN ALLOWED TO PRESENT AS A WITNESS DEFENDANT’S EMPLOYEE, THE BUILDING SUPERINTENDENT AT THE TIME OF THE SLIP AND FALL, DESPITE LATE NOTIFICATION; THE DIRECTED VERDICT WAS REVERSED (FIRST DEPT).

The First Department, reversing the directed verdict, determined the proof demonstrated water leaking from the ceiling onto the floor was a recurrent dangerous condition which was not addressed by the landlord. The First Department also held that a witness for the plaintiff, who was defendant’s employee at the time of the accident, should have been allowed to testify:

Plaintiff’s trial evidence established prima facie that defendant had constructive notice of the water on the floor of the lobby of its building on which plaintiff allegedly slipped and fell … . Plaintiff testified that at least four times before his accident, every few months, he observed water leaking from the ceiling onto the floor below in the area where he fell. His former girlfriend, with whom he lived in the building, testified that before the date of the accident “there were leaks and then afterward it was leaking again.” This testimony established that “an ongoing and recurrent dangerous condition existed in the area of the accident that was routinely left unaddressed by the landlord” … . Issues of credibility were for the jury.

The trial court improvidently exercised its discretion in precluding the testimony of Henry Soto, defendant’s building superintendent at the time of the accident, on the ground that it was prejudicial to defendant. Defendant could not have been prejudiced or surprised by plaintiff’s disclosure of Soto as a witness on the eve of trial, since Soto was defendant’s employee at the time of the accident … . Monzac v 1141 Elder Towers LLC, 2020 NY Slip Op 01243, First Dept 2-20-20

 

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ALTHOUGH THE LEASE DID NOT IMPOSE A DUTY ON THE TENANT TO MAINTAIN THE SIDEWALK, THE VILLAGE CODE DID; THE TENANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant tenant’s (Invite Health’s) motion for summary judgment in this sidewalk slip and fall case should not have been granted. Although, under the lease, the tenant had no duty to maintain the sidewalk, the village code imposed that duty on owners and tenants:

Here, Code of the Village of New Hyde Park § 165-40.1 requires “owners, tenants or other persons occupying or entitled to the possession and control of any lands, whether vacant or improved” to, among other things, maintain the abutting public sidewalk “in a good state of repair and free and clear of any physical defects or other unsafe, hazardous or dangerous obstructions, encumbrances or conditions” and imposes joint and several liability upon them for injuries caused by their breach of that duty (see Code of the Village of New Hyde Park §§ 1-18, 165-40.1). Given the Code’s imposition of an obligation on a tenant or occupant to maintain an abutting public sidewalk, Invite Health, as a tenant and occupant of the abutting property, had a statutory duty to maintain the public sidewalk where the accident occurred (see Code of the Village of New Hyde Park §§ 1-18, 165-40.1 …) . As such, the mere fact that Invite Health had no duty under the lease agreement to maintain the abutting sidewalk was not dispositive of the issue of whether it owed the injured plaintiff a duty of care. Mule v Invite Health at New Hyde Park, Inc., 2020 NY Slip Op 00869, Second Dept 2-5-20

 

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USE OF A SINGLE FAMILY HOME FOR MOSTLY WEEKEND SHORT-RENTALS IS NOT A LEGAL NONCONFORMING USE OF THE PROPERTY (SECOND DEPT).

The Second Department determined the zoning board properly held that petitioner’s. Cradit’s, use of her property for short-term guests was not a legal nonconforming use:

… [W]e agree with the Board’s determination that Cradit’s use of her property was not a legal nonconforming use. Contrary to Cradit’s argument, in renting out the residence on the property on a short-term basis, she was not using the residence as a one-family dwelling. A one-family dwelling is a building that contains a single dwelling unit (see Southold Town Code § 280-4[B]). Where property is used as “a boarding- or rooming house, . . . hotel, motel, inn, lodging or nursing or similar home or other similar structure[, it] shall not be deemed to constitute a dwelling unit'” (id.). The Board correctly determined that Cradit’s use of the residence for short-term rentals was “similar to a hotel/motel use,” which had never been a permissible use in her zoning district. Moreover, prior to the enactment of Southold Town Code §§ 280-4 and 280-111(J), Southold Town Code § 280-8(E) specifically provided that “any use not permitted by this chapter shall be deemed prohibited.” Accordingly, because Cradit was using the property in violation of a prior zoning ordinance, she could not establish that her current use is a legal nonconforming use … . Matter of Cradit v Southold Town Zoning Bd. of Appeals, 2020 NY Slip Op 00588, Second Dept 1-29-20

 

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QUESTIONS OF FACT WHETHER THE ASSAILANT WAS AN INTRUDER AND WHETHER THE LANDLORD HAD NOTICE OF THE DEFECTIVE DOOR LOCK IN THIS THIRD-PARTY ASSAULT CASE; LANDLORD’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant NYC Housing Authority’s (NYCHA’s) motion for summary judgment in this third-party assault case should not have been granted. Plaintiff raised questions of fact whether the assailant was an intruder and whether the NYCHA had notice of the defective entrance door to the apartment building:

NYCHA failed to eliminate an issue of fact as to whether it was ” more likely or more reasonable than not'” that the man who shot plaintiff in the leg in front of his apartment door was an intruder ” who gained access to the premises through a negligently maintained entrance'” … . Plaintiff testified that a man spoke to him on the sidewalk just outside the building, asking where he could find drugs, and that, after plaintiff entered through the unlocked front entrance and walked up the stairs to his floor and along the hall 10 feet to his apartment, he saw the man again when he heard the door to the stairwell open, and the man held him up at gunpoint.

From plaintiff’s familiarity with building residents, the history of ongoing criminal activity, and the assailant’s failure to conceal his or her identity a jury could reasonably infer “that the assailant was more likely than not an intruder” … . Plaintiff informed the police that he could identify the assailant if shown a photograph … . NYCHA’s evidence also showed that there was a robbery inside the building about 18 months before plaintiff’s incident, requiring repairs to the front door lock, and various shootings on the grounds … .

Contrary to NYCHA’s contention, there is enough evidence as to how the assailant gained entry to the building to require consideration of whether NYCHA had actual or constructive notice of the nonfunctioning door lock … . A jury could infer from plaintiff’s testimony that the assailant entered the building himself and did not need to wait for anyone in the lobby to open the door for him.

Nor does its evidence demonstrate that NYCHA did not have constructive notice of the nonfunctioning door lock, since plaintiff testified that the lock was not functioning the day before and the day of the incident, but the last daily maintenance checklist produced by NYCHA, which included the front door lock, was dated two days before the incident … . Clotter v New York City Hous. Auth., 2020 NY Slip Op 00554, First Dept 1-28-20

 

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BUILDING OWNER NOT LIABLE FOR ALLEGED FAILURE TO ENSURE A SMOKE DETECTOR WAS FUNCTIONAL, DESPITE THE ALLEGATION THE OWNER REGULARLY INSPECTED THE SMOKE DETECTORS (FIRST DEPT).

The First Department determined the defendant landlord could not be held liable for the failure to ensure a smoke detector was functional:

In this action where plaintiff alleges that he was injured as a result of a fire in his apartment due to defendant building owner’s negligent failure to provide an operable smoke detector, defendant demonstrated prima facie that he satisfied his statutory duty to provide a functional smoke detector in the apartment, and accordingly, the obligation to maintain the smoke detector was assumed by plaintiff (see Administrative Code of City of NY § 27-2045[a][1], [b][1], [2]).

Plaintiff’s argument that defendant voluntarily assumed a duty to ensure his smoke detector was in good working condition by regularly inspecting tenants’ smoke detectors, is unavailing. “Liability under this theory may be imposed only if defendant’s conduct placed plaintiff in a more vulnerable position than he would have been in had defendant done nothing” … . Here, however, plaintiff provided no evidence that he relied on defendant’s inspection of his smoke detector to ensure its functionality, and instead testified that he never saw the building superintendent inspect his smoke detector. Figueroa v Parkash, 2020 NY Slip Op 00525, First Dept 1-28-20

 

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CLASS ACTION AGAINST NYC HOUSING AUTHORITY FOR BREACH OF THE WARRANTY OF HABITABILITY RE: LOSS OF HEAT AND/OR HOT WATER GOES FORWARD (FIRST DEPT).

The First Department, reversing Supreme Court, determined the breach of the warranty of habitability cause of action should not have been dismissed . The plaintiff’s motion for certification of the “damages class” was granted. The class action concerned the loss of heat and/or hot water in NYC Housing Authority properties:

In order to prove a claim for breach of the warranty of habitability, plaintiffs must show the extensiveness of the breach, the manner in which it affected the health, welfare or safety of the tenants, and the measures taken by the landlord to alleviate the violation … .

NYCHA conceded that 80% of its housing units experienced heat and/or hot water outages during the relevant period, which demonstrates that the problems that affected each class member were system-wide. Thus, much of the proof will likely concern NYCHA’s overall deficiencies, rather than the breakdown of individual heating systems in individual buildings. The need to conduct individualized damages inquiries does not prevent class certification as long as common issues of liability predominate … .

In any event, the heating systems that failed served multiple housing units, and proof of NYCHA’s efforts to repair each system will be common to numerous class members. In order to address any concerns with the size or disparity of the class, the court can designate subclasses consisting of tenants of a particular NYCHA complex, development or building … .

Moreover, class action treatment is the most efficient method for adjudicating the claims of class members who lack the resources to bring individual actions for the small recovery they might obtain … . Diamond v New York City Hous. Auth., 2020 NY Slip Op 00376, First Dept 1-21-20

 

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NYC LOFT BOARD SHOULD NOT HAVE REJECTED TENANTS’ WITHDRAWAL OF THE LOFT LAW CONVERSION APPLICATION BECAUSE THERE WAS AN ALTERNATIVE WAY TO OBTAIN RENT REGULATION COVERAGE OUTSIDE THE LOFT LAW’S STATUTORY SCHEME (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Renwick, determined the tenants’ request to withdraw the conversion application under the Loft Law should have been granted by the NYC Loft Board:

This article 78 proceeding stems from an application for the legal conversion of certain lofts in New York City from commercial use to residential use pursuant to Article 7-C of the Multiple Dwelling Law (§ 283), commonly known as the Loft Law. Where owners register covered buildings and comply with the Loft Law’s requirements, the Loft Law will deem a building an “interim multiple dwelling (IMD)” (Multiple Dwelling Law § 284[1]), which would allow the owner to collect rent from residential occupants, despite the lack of a residential certificate of occupancy (Multiple Dwelling Law §§ 283, 285, 301). The Loft Law requires landlords to bring converted residences up to code and prevents them from charging tenants for improvements until the issuance of a certificate of occupancy (Multiple Dwelling Law § 284(1)). The Loft Law is administered by the New York City Loft Board (Multiple Dwelling Law § 282). * * *

Here, the petitioner tenant claims, and the Loft Board does not dispute, that there is a separate and independent track for the tenants to obtain rent regulation coverage outside the Loft Law’s statutory scheme. It is undisputed that the four residential occupancies are legal under New York City Zoning applicable to the area where the subject building is located. While the Rent Stabilization Law usually requires buildings to have six or more residential units, adjacent buildings with common facilities, ownership, and management are treated as one integrated unit, thereby constituting a horizontal multiple dwelling for purposes of rent stabilization … . In this case, the subject building is a rear building that adjoins a front building that is already subject to rent stabilization. Given that the buildings share common ownership — a sprinkler system, a plumbing system, and their respective electric meters and mailboxes are at the same location — the rear building appears to be part of a horizontal multiple dwelling that would be subject to rent stabilization once the residential certificate of occupancy is procured by the owner. Matter of Callen v New York City Loft Bd., 2020 NY Slip Op 00368, First Dept 1-16-20

 

ALTHOUGH PLAINTIFF COMMERCIAL TENANT DID NOT PROVE IT GAVE TIMELY NOTICE OF ITS INTENT TO RENEW THE LEASE, THE TENANT WAS ENTITLED TO RELIEF IN EQUITY (SECOND DEPT).

The Second Department determined that, although plaintiff commercial tenant did not prove it provided timely notice of its option to renew the lease, the tenant was entitled to relief in equity:

Although the general rule is that a tenant that fails to exercise an option to renew within the time and in the manner provided in the lease is without remedy at law … , equity will intervene to relieve a commercial tenant’s failure to exercise an option to renew within the time and in the manner provided in the lease “where (1) such failure was the result of inadvertence,’ negligence’ or honest mistake’; (2) the nonrenewal would result in a forfeiture’ by the tenant; and (3) the landlord would not be prejudiced by the tenant’s failure to send, or its delay in sending, the renewal notice” … . Laundry Mgt. – N. 3rd St., Inc. v BFN Realty Assoc., LLC, 2020 NY Slip Op 00265, Second Dept 1-17-20

 

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TENANT IN THE BUILDING ABUTTING A DEFECTIVE SIDEWALK WAS NOT LIABLE FOR A SLIP AND FALL; RELEVANT LAW CONCISELY AND COMPLETELY EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant, a tenant in the building abutting the sidewalk, could not be held liable for a sidewalk defect which allegedly caused plaintiff’s slip and fall. The Second Department concisely but completely laid out the law on the issues:

Pursuant to Administrative Code of the City of New York § 7-210(a), “the owner of real property abutting any sidewalk” has a duty “to maintain such sidewalk in a reasonably safe condition.” “Notwithstanding any other provision of law, the owner of real property abutting any sidewalk . . . shall be liable for any injury to property or personal injury, including death, proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition” … . “As a general rule, the provisions of a lease obligating a tenant to repair the sidewalk do not impose on the tenant a duty to a third party” … . “However, where a lease agreement is so comprehensive and exclusive as to sidewalk maintenance as to entirely displace the landowner’s duty to maintain the sidewalk, the tenant may be liable to a third party” … .

Here, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not create the alleged defect, make special use of the sidewalk, violate any applicable statute, or have a contractual duty to maintain the sidewalk where the accident occurred … . Leitch-Henry v Doe Fund, Inc., 2020 NY Slip Op 00112, Second Dept 1-8-20

 

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