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ALTHOUGH THE OUT OF POSSESSION LANDLORDS WERE OBLIGATED TO MAKE REPAIRS, THEY DEMONSTRATED THEY DID NOT CREATE THE ALLEGED DANGEROUS CONDITION AND DID NOT HAVE NOTICE OF IT, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant out-of-possession landlord’s motion for summary judgment in this slip and fall case should have been granted. Although the lease obligated defendants to make repairs, defendants established they did not create the alleged hazardous condition and did not have actual or constructive notice of it:

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The plaintiff allegedly was injured when he tripped and fell off of the front stoop of a house that he was renting from the defendants, who owned the house. The plaintiff testified at a deposition that, as he exited the house, he stepped out onto the landing, and then down one stair. When he realized that he forgot to lock the interior door to the house, he stepped back onto the landing and attempted to open the outer door to the house. He alleged that the outer door extended beyond the edge of the landing, which made it difficult to stand on the landing and open the door at the same time. He further alleged that, as he tried to open the outer door, he lost his footing and began to fall. He grabbed the handrail to stop his fall, but the handrail broke.

“An out-of-possession landlord that has assumed the obligation to make repairs to its property cannot be held liable for injuries caused by a defective condition at the property unless it either created the condition or had actual or constructive notice of it” … . Amster v Kromer, 2018 NY Slip Op 00538, Second Dept 1-31-18

NEGLIGENCE (ALTHOUGH THE OUT OF POSSESSION LANDLORDS WERE OBLIGATED TO MAKE REPAIRS, THEY DEMONSTRATED THEY DID NOT CREATE THE ALLEGED DANGEROUS CONDITION AND DID NOT HAVE NOTICE OF IT, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (LANDLORD-TENANT, ALTHOUGH THE OUT OF POSSESSION LANDLORDS WERE OBLIGATED TO MAKE REPAIRS, THEY DEMONSTRATED THEY DID NOT CREATE THE ALLEGED DANGEROUS CONDITION AND DID NOT HAVE NOTICE OF IT, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/LANDLORD-TENANT (SLIP AND FALL, ALTHOUGH THE OUT OF POSSESSION LANDLORDS WERE OBLIGATED TO MAKE REPAIRS, THEY DEMONSTRATED THEY DID NOT CREATE THE ALLEGED DANGEROUS CONDITION AND DID NOT HAVE NOTICE OF IT, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/OUT OF POSSESSION LANDLORD (SLIP AND FALL, ALTHOUGH THE OUT OF POSSESSION LANDLORDS WERE OBLIGATED TO MAKE REPAIRS, THEY DEMONSTRATED THEY DID NOT CREATE THE ALLEGED DANGEROUS CONDITION AND DID NOT HAVE NOTICE OF IT, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

UNDER THE MULTIPLE DWELLING LAW, LESSEE WAS NOT ENTITLED TO RENT FROM THE SUBTENANTS FOR THE PERIOD DURING WHICH THERE WAS NO CERTIFICATE OF OCCUPANCY (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the subtenants (respondents), pursuant to the Multiple Dwelling Law, could not collect rent from the lessee (petitioner) for the period during which there was no certificate of occupancy:

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Petitioner was the net lessee of the third floor of a six-story building, a de facto multiple dwelling; the net lease provided, inter alia, that there was no permanent certificate of occupancy for either the building or the demised premises. In April 2013, petitioner brought this proceeding alleging that respondents, its subtenants, had failed to pay residential use and occupancy since January 2013. Affording the relevant statutory language its natural and ordinary meaning … , we conclude that the proceeding must be dismissed because petitioner was not entitled to collect rent from respondents.

For purposes of the Multiple Dwelling Law, an “owner” is broadly defined to include a “lessee” … . Respondents’ unit constituted a “dwelling” under the Multiple Dwelling Law [“any building or structure or portion thereof which is occupied in whole or in part as the home, residence or sleeping place of one or more human beings” (Multiple Dwelling Law 4[4]). The owner of a “dwelling or structure … occupied in whole or in part for human habitation in violation of [§ 301]” may not recover rent for the period during which there is no certificate of occupancy for “such premises” (Multiple Dwelling Law § 302[1][b]). Nor may the owner maintain an action or special proceeding for possession of the premises for nonpayment of “such rent” (id.). Thus, petitioner, as owner of respondents’ dwelling, was precluded from charging respondents rent or other remuneration while the building lacked a certificate of occupancy for residential use … . Matter of 49 Bleecker, Inc. v Gathien, 2018 NY Slip Op 00476, First Dept 1-25-18

LANDLORD-TENANT (UNDER THE MULTIPLE DWELLING LAW, LESSEE WAS NOT ENTITLED TO RENT FROM THE SUBTENANTS FOR THE PERIOD DURING WHICH THERE WAS NO CERTIFICATE OF OCCUPANCY (FIRST DEPT))/MULTIPLE DWELLING LAW (LANDLORD-TENANT, UNDER THE MULTIPLE DWELLING LAW, LESSEE WAS NOT ENTITLED TO RENT FROM THE SUBTENANTS FOR THE PERIOD DURING WHICH THERE WAS NO CERTIFICATE OF OCCUPANCY (FIRST DEPT))/CERTIFICATE OF OCCUPANCY (LANDLORD-TENANT, MULTIPLE DWELLING LAW,  LESSEE WAS NOT ENTITLED TO RENT FROM THE SUBTENANTS FOR THE PERIOD DURING WHICH THERE WAS NO CERTIFICATE OF OCCUPANCY (FIRST DEPT))/SUBTENANTS (UNDER THE MULTIPLE DWELLING LAW, LESSEE WAS NOT ENTITLED TO RENT FROM THE SUBTENANTS FOR THE PERIOD DURING WHICH THERE WAS NO CERTIFICATE OF OCCUPANCY (FIRST DEPT))

LANDLORD BROUGHT EJECTMENT CAUSE OF ACTION AGAINST RENT REGULATED TENANT FOR RENTING TO AIRBNB CUSTOMERS, THE EJECTMENT CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, modifying Supreme Court, determined there was no basis to dismiss the ejectment cause of action which was based upon the rent-regulated tenant’s renting to Airbnb customers:

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Plaintiff seeks to eject defendants based on their having illegally sublet rooms in their loft through the Airbnb website to numerous individuals, over a period of about two years, resulting in profits well in excess of the legal regulated rent. It is well settled that, when regulated tenants rent space on a short-term basis to transient individuals at rates higher than allowed by applicable regulations, that conduct is “in the nature of subletting rather than taking in roommates, and constitute[s] profiteering and commercialization of the premises,” which is an “incurable violation” … . Defendants do not dispute that tenants regulated pursuant to the Loft Law also are subject to eviction for profiteering … .

Since the alleged conduct is incurable, no notice to cure is required … . As for the adequacy of the predicate notice of termination, plaintiff served a notice under the terms of the expired lease, which carried over into the statutory tenancy and governed the amount of notice required when the tenant violates a substantial obligation of his tenancy or is alleged to have engaged in illegal conduct … . Aurora Assoc. LLC v Hennen, 2018 NY Slip Op 00465, First Dept 1-25-18

LANDLORD-TENANT (EJECTMENT, AIRBNB, LANDLORD BROUGHT EJECTMENT CAUSE OF ACTION AGAINST RENT REGULATED TENANT FOR RENTING TO AIRBNB CUSTOMERS, THE EJECTMENT CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT))/EJECTMENT (LANDLORD-TENANT, ARIBNB, LANDLORD BROUGHT EJECTMENT CAUSE OF ACTION AGAINST RENT REGULATED TENANT FOR RENTING TO AIRBNB CUSTOMERS, THE EJECTMENT CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT))/AIRBNB (EJECTMENT, LANDLORD BROUGHT EJECTMENT CAUSE OF ACTION AGAINST RENT REGULATED TENANT FOR RENTING TO AIRBNB CUSTOMERS, THE EJECTMENT CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT))/PROFITEERING (LANDLORD-TENANT, AIRBNB, EJECTIMENT, LANDLORD BROUGHT EJECTMENT CAUSE OF ACTION AGAINST RENT REGULATED TENANT FOR RENTING TO AIRBNB CUSTOMERS, THE EJECTMENT CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT))

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OUT OF POSSESSION LANDLORD DID NOT DEMONSTRATE A LACK OF ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF A LEAKING WATER HEATER IN THIS SLIP AND FALL CASE, LANDLORD’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT).

The Second Department determined the defendant out of possession landlord’s motion for summary judgment in this slip and fall case was properly denied. The lease imposed a duty to repair (here plaintiff slipped on water from a leaking water heater) and the landlord’s papers did not demonstrate a lack of actual or constructive notice:

 

An out-of-possession landlord and its agent are not liable for injuries caused by dangerous conditions on leased premises in the absence of a statute imposing liability, a contractual provision placing the duty to repair on the landlord, or a course of conduct by the landlord giving rise to a duty … .

Here, the defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint. They submitted a copy of the lease, which established that Felice was required to remedy “any defective condition in any plumbing, heating system or electrical lines located in the demised premises” following prompt notice by the tenant. The defendants’ submissions, however, failed to eliminate all triable issues of fact, including whether they had actual or constructive notice of the allegedly defective hot water heater, thereby placing upon them the duty to repair it pursuant to the lease. Accordingly, the motion was properly denied, regardless of the sufficiency of the plaintiff’s opposition papers … . Irizarry v Felice Realty Corp., 2018 NY Slip Op 00415, Second Dept 1-24-18

NEGLIGENCE (SLIP AND FALL, OUT OF POSSESSION LANDLORD DID NOT DEMONSTRATE A LACK OF ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF A LEAKING WATER HEATER IN THIS SLIP AND FALL CASE, LANDLORD’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/LANDLORD-TENANT (NEGLIGENCE, SLIP AND FALL, OUT OF POSSESSION LANDLORD DID NOT DEMONSTRATE A LACK OF ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF A LEAKING WATER HEATER IN THIS SLIP AND FALL CASE, LANDLORD’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/OUT OF POSSESSION LANDLORD  (NEGLIGENCE, SLIP AND FALL, OUT OF POSSESSION LANDLORD DID NOT DEMONSTRATE A LACK OF ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF A LEAKING WATER HEATER IN THIS SLIP AND FALL CASE, LANDLORD’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/SLIP AND FALL (OUT OF POSSESSION LANDLORD DID NOT DEMONSTRATE A LACK OF ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF A LEAKING WATER HEATER IN THIS SLIP AND FALL CASE, LANDLORD’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))

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OUT OF POSSESSION LANDLORDS NOT LIABLE FOR SIDEWALK SLIP AND FALL (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant out-of-possession landlords’ motion for summary judgment should have been granted in this sidewalk slip and fall case:

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Defendants cannot be held liable for injuries allegedly sustained by plaintiff when he slipped on snow and ice on the sidewalk adjacent to their property, because they were out-of-possession landlords with no contractual obligation to keep the sidewalks clear of snow and ice, and the presence of snow and ice does not constitute a significant structural or design defect … . Xiang Fu He v Troon Mgt., Inc., 2018 NY Slip Op 00382, First Dept 1-23-18

NEGLIGENCE (OUT OF POSSESSION LANDLORDS NOT LIABLE FOR SIDEWALK SLIP AND FALL (FIRST DEPT))/LANDLORD-TENANT (NEGLIGENCE, SLIP AND FALL, OUT OF POSSESSION LANDLORDS NOT LIABLE FOR SIDEWALK SLIP AND FALL (FIRST DEPT))/SLIP AND FALL (OUT OF POSSESSION LANDLORDS NOT LIABLE FOR SIDEWALK SLIP AND FALL (FIRST DEPT))/SIDEWALKS (SLIP AND FALL, OUT OF POSSESSION LANDLORDS NOT LIABLE FOR SIDEWALK SLIP AND FALL (FIRST DEPT))/OUT OF POSSESSION LANDLORD (NEGLIGENCE, SLIP AND FALL, OUT OF POSSESSION LANDLORDS NOT LIABLE FOR SIDEWALK SLIP AND FALL (FIRST DEPT))

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APARTMENTS RECEIVING TAX BENEFITS PURSUANT TO RPTL 421-g ARE SUBJECT TO THE LUXURY VACANCY DECONTROL PROVISIONS OF THE NYC RENT STABILIZATION LAW AND WERE PROPERLY DEREGULATED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiffs’ apartments, which received tax benefits pursuant to Real Property Tax Law 421-g are subject to the luxury vacancy decontrol provisions of the NYC Rent Stabilization Law. Therefore plaintiffs’ apartments were properly deregulated and were not subject to rent stabilization:

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Except for condominiums and cooperatives, dwellings in buildings that receive tax benefits pursuant to Real Property Tax Law § 421-g are subject to rent stabilization for the entire period the building is receiving 421-g benefits (Real Property Tax Law § 421-g[6]). However, 421-g buildings are subject to the luxury vacancy decontrol provisions of Rent Stabilization Law of 1969 [Administrative Code of City of NY] § 26-504.2(a), unlike buildings that receive tax benefits pursuant to Real Property Tax Law §§ 421-a and 489.

Real Property Tax Law § 421-g does not create another exemption to Rent Stabilization Law § 26-504.2(a). Supreme Court essentially interpreted Real Property Tax Law § 421-g(6)’s prefatory phrase “Notwithstanding the provisions of any local law for [rent stabilization]” to mean “Notwithstanding [the luxury decontrol] provisions of any local law.” However, “[a] statute or legislative act is to be construed as a whole, and all parts of an act are to be read and construed together to determine the legislative intent”… .Accordingly, the prefatory phrase, which also appears identically in RPTL 421-a(2)(f), must be read in tandem with the coverage clause of that section. The prefatory phrase and the coverage clause were both necessary to extend rent stabilization to certain dwellings in buildings receiving 421-g benefits. Kuzmich v 50 Murray St. Acquisition LLC, 2018 NY Slip Op 00336, First Dept 1-18-18

MUNICIPAL LAW (NYC) (RENT STABILIZATION, APARTMENTS RECEIVING TAX BENEFITS PURSUANT TO RPTL 421-g ARE SUBJECT TO THE LUXURY VACANCY DECONTROL PROVISIONS OF THE NYC RENT STABILIZATION LAW AND WERE PROPERLY DEREGULATED (FIRST DEPT))/LANDLORD-TENANT (NYC, RENT STABILIZATION, APARTMENTS RECEIVING TAX BENEFITS PURSUANT TO RPTL 421-g ARE SUBJECT TO THE LUXURY VACANCY DECONTROL PROVISIONS OF THE NYC RENT STABILIZATION LAW AND WERE PROPERLY DEREGULATED (FIRST DEPT))/REAL PROPERTY TAX LAW  (NYC, RENT STABILIZATION, APARTMENTS RECEIVING TAX BENEFITS PURSUANT TO RPTL 421-g ARE SUBJECT TO THE LUXURY VACANCY DECONTROL PROVISIONS OF THE NYC RENT STABILIZATION LAW AND WERE PROPERLY DEREGULATED (FIRST DEPT))/RENT STABILIZATION LAW (NYC) (APARTMENTS RECEIVING TAX BENEFITS PURSUANT TO RPTL 421-g ARE SUBJECT TO THE LUXURY VACANCY DECONTROL PROVISIONS OF THE NYC RENT STABILIZATION LAW AND WERE PROPERLY DEREGULATED (FIRST DEPT))/APARTMENTS (NYC) (RENT STABILIZATION, APARTMENTS RECEIVING TAX BENEFITS PURSUANT TO RPTL 421-g ARE SUBJECT TO THE LUXURY VACANCY DECONTROL PROVISIONS OF THE NYC RENT STABILIZATION LAW AND WERE PROPERLY DEREGULATED (FIRST DEPT))/LUXURY VACANCY DECONTROL (NYC, RENT STABILIZATION, APARTMENTS RECEIVING TAX BENEFITS PURSUANT TO RPTL 421-g ARE SUBJECT TO THE LUXURY VACANCY DECONTROL PROVISIONS OF THE NYC RENT STABILIZATION LAW AND WERE PROPERLY DEREGULATED (FIRST DEPT))

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PLAINTIFF SHOULD HAVE BEEN GRANTED SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, DEFENDANTS GENERAL CONTRACTOR AND LESSEE SHOULD NOT HAVE BEEN GRANTED SUMMARY JUDGMENT, DEFENDANT OUT OF POSSESSION LANDLORD SHOULD HAVE BEEN GRANTED SUMMARY JUDGMENT, CRITERIA EXPLAINED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff should have been granted summary judgment on his Labor Law 240 (1) cause of action, the general contractor’s (PWI’s) and lessee’s (St. John’s) motions for summary judgment should have been denied, and the out-of-possession landlord’s (Rolex’s) motion for summary judgment should have been granted. Plaintiff was injured moving a 600 pound I-beam down some stairs and alleged there was debris on the steps, there was no handrail, and the lighting was dim:

 

The Labor Law § 200 and common-law negligence claims were incorrectly dismissed as against PWI and St. John. To the extent plaintiff’s claim is based on allegations that his fall was due to the defective condition of the premises (including the presence of debris on the staircase, inadequate lighting, and the lack of a handrail), defendants can be held liable for plaintiff’s injuries only if they created or had notice of the dangerous conditions on the premises … . … [P]laintiff raised an issue of fact through his testimony that there was debris in the form of chopped concrete, pieces of wire, and trim studs on the steps, that there was no handrail, and that the lighting was dim. …

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The record demonstrates that Rolex, an out-of-possession landlord with a right of re-entry to maintain and repair, was not involved with the project and was not on site and thus that it had no actual notice of the dangerous conditions … . The record demonstrates further that Rolex cannot be held liable under a theory of constructive notice because the dangerous conditions did not constitute significant structural or design defects that violated specific safety statutes … .

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Finally, defendants were not entitled to summary judgment dismissing the claim under Labor Law § 240(1), and plaintiff was entitled to summary judgment as to liability on that claim. The record establishes a failure to provide plaintiff and his coworker with devices offering adequate protection against the gravity-related risks of moving an extremely heavy object down a staircase, leading to the workers’ loss of control over the object’s descent and plaintiff’s injuries … . Dirschneider v Rolex Realty Co. LLC, 2018 NY Slip Op 00253,  First Dept 1-16-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF SHOULD HAVE BEEN GRANTED SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, DEFENDANTS GENERAL CONTRACTOR AND LESSEE SHOULD NOT HAVE BEEN GRANTED SUMMARY JUDGMENT, DEFENDANT OUT OF POSSESSION LANDLORD SHOULD HAVE BEEN GRANTED SUMMARY JUDGMENT, CRITERIA EXPLAINED (FIRST DEPT))/LANDLORD-TENANT (LABOR LAW-CONSTRUCTION LAW, DEFENDANT OUT OF POSSESSION LANDLORD SHOULD HAVE BEEN GRANTED SUMMARY JUDGMENT IN THIS LABOR LAW 240 (1) AND 200 ACTION, CRITERIA EXPLAINED (FIRST DEPT))

QUESTION OF FACT WHETHER THERE HAD BEEN A SURRENDER OF THE LEASED PREMISES BY OPERATION OF LAW, THEREBY LIMITING TENANT’S LIABILITY FOR ABANDONMENT OF THE LEASE WITH TEN YEARS REMAINING (FIRST DEPT).

The First Department, reversing Supreme Court, determined the tenant raised a trial issue of fact about whether there was a surrender of the leased premises (a parking garage with ground-floor subtenants) by operation of law. The tenant had abandoned the lease with ten years remaining:

…[T]the tenant raised a viable issue of fact as to whether the landlord took dominion and control of the building for its own benefit. The tenant submitted evidence that, after it returned the keys to the landlord and vacated the premises, the landlord took possession of the premises, and not only sent bills directly to the subtenants, but also entered into its own contract with Central Parking to operate the parking garage and to pay the landlord each month all the income received from the garage operations. The tenant submitted further evidence that the landlord placed the property for sale at some juncture. When viewed in the light most favorable to the tenant, as nonmoving party, and given the nonmoving party the benefit of all reasonable inferences that can be drawn from the evidence … , these facts support an inference that, upon the tenant's abandonment, the landlord intended to take dominion and control of the premises for its own benefit. 176 PM, LLC v Heights Stor. Garage, Inc., 2018 NY Slip Op 00223, First Dept 1-11-18

LANDLORD-TENANT (SURRENDER BY OPERATION OF LAW, QUESTION OF FACT WHETHER THERE HAD BEEN A SURRENDER OF THE LEASED PREMISES BY OPERATION OF LAW, THEREBY LIMITING TENANT'S LIABILITY FOR ABANDONMENT OF THE LEASE WITH TEN YEARS REMAINING (FIRST DEPT))/SURRENDER BY OPERATION OF LAW (LANDLORD-TENANT, QUESTION OF FACT WHETHER THERE HAD BEEN A SURRENDER OF THE LEASED PREMISES BY OPERATION OF LAW, THEREBY LIMITING TENANT'S LIABILITY FOR ABANDONMENT OF THE LEASE WITH TEN YEARS REMAINING (FIRST DEPT))/ABANDONMENT OF LEASE (LANDLORD-TENANT, QUESTION OF FACT WHETHER THERE HAD BEEN A SURRENDER OF THE LEASED PREMISES BY OPERATION OF LAW, THEREBY LIMITING TENANT'S LIABILITY FOR ABANDONMENT OF THE LEASE WITH TEN YEARS REMAINING (FIRST DEPT))

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TENANT DID NOT COUNTERCLAIM FOR ATTORNEY’S FEES IN THE EVICTION PROCEEDINGS, TENANT’S BRINGING A PLENARY ACTION FOR ATTORNEY’S FEES AFTER SUCCESSFULLY DEFENDING THE EVICTION DID NOT VIOLATE THE PROHIBITION AGAINST CLAIM SPLITTING (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice DeMoyer, refusing to follow the 1st Department, determined the tenant, who was a defendant in a failed eviction action, had the right to bring a plenary action to recover attorney’s fees without violating the prohibition against claim splitting. It is significant that the tenant did not counterclaim for attorney’s fees in the answer to the eviction action. The fact that the answer included a boilerplate request for attorney’s fees in the wherefore clause did not amount to a counterclaim (which is authorized by Real Property Law § 234:

Applying the traditional understanding of the claim splitting rule discussed above and embodied in the landlord-tenant case law, the landlord’s bid for dismissal on claim splitting grounds must fail. It was the landlord, not the tenant, who instituted the two prior proceedings in Village Court. The tenant successfully defended herself against the landlord’s claims, but she did not assert an affirmative claim until the instant plenary action. Indeed, the landlord’s appellate brief explicitly concedes that the tenant did not interpose a Real Property Law § 234 counterclaim for attorneys’ fees in either of the two prior proceedings. Thus, because the instant action is the tenant’s first assertion of an affirmative claim for relief under section 234, the claim splitting rule poses no bar to her recovery. Put simply, the tenant cannot be guilty of claim splitting because, until the instant action, there was no claim to split. Caracaus v Conifer Cent. Sq. Assoc., 2017 NY Slip Op 08946, Fourth Dept 12-22-17

 

CIVIL PROCEDURE (CLAIM SPLITTING, TENANT DID NOT COUNTERCLAIM FOR ATTORNEY’S FEES IN THE EVICTION PROCEEDINGS, TENANT’S BRINGING A PLENARY ACTION FOR ATTORNEY’S FEES AFTER SUCCESSFULLY DEFENDING THE EVICTION DID NOT VIOLATE THE PROHIBITION AGAINST CLAIM SPLITTING (FOURTH DEPT))/LANDLORD-TENANT (EVICTION, ATTORNEY’S FEES, TENANT DID NOT COUNTERCLAIM FOR ATTORNEY’S FEES IN THE EVICTION PROCEEDINGS, TENANT’S BRINGING A PLENARY ACTION FOR ATTORNEY’S FEES AFTER SUCCESSFULLY DEFENDING THE EVICTION DID NOT VIOLATE THE PROHIBITION AGAINST CLAIM SPLITTING (FOURTH DEPT))/REAL PROPERTY LAW (LANDLORD-TENANT, ATTORNEY’S FEES, TENANT DID NOT COUNTERCLAIM FOR ATTORNEY’S FEES IN THE EVICTION PROCEEDINGS, TENANT’S BRINGING A PLENARY ACTION FOR ATTORNEY’S FEES AFTER SUCCESSFULLY DEFENDING THE EVICTION DID NOT VIOLATE THE PROHIBITION AGAINST CLAIM SPLITTING (FOURTH DEPT))/CLAIM SPLITTING  (LANDLORD-TENANT, ATTORNEY’S FEES, TENANT DID NOT COUNTERCLAIM FOR ATTORNEY’S FEES IN THE EVICTION PROCEEDINGS, TENANT’S BRINGING A PLENARY ACTION FOR ATTORNEY’S FEES AFTER SUCCESSFULLY DEFENDING THE EVICTION DID NOT VIOLATE THE PROHIBITION AGAINST CLAIM SPLITTING (FOURTH DEPT))

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TENANT DID NOT HAVE STANDING TO SUE LANDLORD’S INSURER FOR DENIAL OF A PROPERTY DAMAGE CLAIM, TENANT HAD NOT PROCURED A JUDGMENT AGAINST THE LANDLORD, A PREREQUISITE FOR A DIRECT SUIT AGAINST THE INSURER (THIRD DEPT).

The Third Department determined plaintiff lessee’s lawsuit against the lessor’s insurance carrier for denial of a claim for water damage was properly dismissed. Under New York law plaintiff could not sue the landlord’s carrier directly unless plaintiff first procured a judgment against the landlord which was not satisfied:

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… [I]t was well-established under the common law that an injured party has no direct cause of action against the insurer of a tortfeasor … . That is, an injured party, as a stranger to the policy between the insured tortfeasor and its insurer, could not, at common law, bring a claim against the tortfeasor’s insurer due to the lack of privity between the injured party and the insurer, even where the injured party had obtained a judgment against the insured … . As a result of the hardships and inequities this rule created, the Legislature created a “limited statutory cause of action on behalf of injured parties directly against insurers,” which is applicable where the injured party has obtained a judgment against an insured and the judgment has gone unsatisfied for 30 days … . It is undisputed that plaintiff has not obtained a judgment against [the landlord], which is “a condition precedent to a direct action” against [the landlord’s] insurer and, thus, plaintiff cannot avail itself of this limited statutory cause of action … . Thus, even liberally construing the complaint, accepting the facts as alleged as true and affording plaintiff the benefit of every inference, plaintiff has not stated a statutory cause of action against [the insurer]. … . As plaintiff is not a named insured under the policy and did not obtain a judgment against [the landlord], Supreme Court properly granted Cincinnati’s motion dismissing the complaint due to plaintiff’s lack of standing and failure to state a cause of action … . GM Broadcasting, Inc. v Cornelius Enters., LLC, 2017 NY Slip Op 08593, Third Dept 12-7-17

 

INSURANCE LAW (LANDLORD-TENANT, CONTRACT LAW, TENANT DID NOT HAVE STANDING TO SUE LANDLORD’S INSURER FOR DENIAL OF A PROPERTY DAMAGE CLAIM, TENANT HAD NOT PROCURED A JUDGMENT AGAINST THE LANDLORD, A PREREQUISITE FOR A DIRECT SUIT AGAINST THE INSURER (THIRD DEPT))/LANDLORD-TENANT (INSURANCE LAW, CONTRACT LAW,  TENANT DID NOT HAVE STANDING TO SUE LANDLORD’S INSURER FOR DENIAL OF A PROPERTY DAMAGE CLAIM, TENANT HAD NOT PROCURED A JUDGMENT AGAINST THE LANDLORD, A PREREQUISITE FOR A DIRECT SUIT AGAINST THE INSURER (THIRD DEPT))/CONTRACT LAW (INSURANCE LAW, LANDLORD-TENANT, TENANT DID NOT HAVE STANDING TO SUE LANDLORD’S INSURER FOR DENIAL OF A PROPERTY DAMAGE CLAIM, TENANT HAD NOT PROCURED A JUDGMENT AGAINST THE LANDLORD, A PREREQUISITE FOR A DIRECT SUIT AGAINST THE INSURER (THIRD DEPT))

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