The First Department noted that an out-of-possession landlord can be held liable for Labor Law 240 and 241 claims:
… [T]he court improperly dismissed the Labor Law §§ 240 and 241 claims on the ground that the City was an out-of-possession landlord, since the statutes impose liability on property owners without regard to the owner's degree of supervision or control over the premises … . Siguencia v City of New York, 2016 NY Slip Op 03108, 1st Dept 4-26-16
The First Department, over a two-justice dissent, determined the New York City Housing Authority (NYCHA) acted arbitrarily and capriciously when it denied petitioner succession rights to his mother's apartment. Petitioner had moved in with his mother to care for her when she became unable to care for herself. The NYCHA knew petitioner had moved in to care for his mother but repeatedly denied petitioner's applications to become an occupant of his mother's apartment on “overcrowding” grounds:
Respondent's determination denying petitioner succession rights to his mother's apartment was arbitrary and capricious. Petitioner's mother submitted multiple applications to add petitioner to the lease as required by 24 CFR 966.4(a)(1)(v). The first application was denied on the ground that adding petitioner to the household “will create overcrowding”; the second, not on that basis but allegedly because petitioner signed the application on his disabled mother's behalf. NYCHA never considered evidence of petitioner's mother's disability in denying the applications.
The ground proffered for the denial, i.e., that adding petitioner to the household would result in overcrowding, creates an unacceptable Catch-22 — a request to add an additional family member will almost always result in overcrowding unless NYCHA fails simultaneously to consider transferring the applicant to a larger apartment. NYCHA guidelines provide that an “overcrowded” apartment should not result in a summary denial of the RFM's (remaining family member's) claims; rather, the housing manager should inform the new tenant that he may submit a request to transfer to a new apartment. Matter of Aponte v Olatoye, 2016 NY Slip Op 02708, 1st Dept 4-7-16
The Court of Appeals, in a full-fledged opinion by Judge Pigott, over a dissenting opinion by Judge Fahey, determined a New York City Local Law, which imposed a duty on the landlord to abate lead paint in an apartment where a child under the age of six “resides,” did not apply to an apartment where a child was cared for 50 hours per week. Plaintiff’s child was cared for during the day by grandmother in grandmother’s apartment. The child developed an elevated lead level. In order to sue the landlord, the landlord must have owed a statutory duty to the child to abate the lead in grandmother’s apartment. The majority held that the term “reside” in the Local Law did not encompass the child’s presence in the apartment 50 hours a week. Therefore the landlord owed no duty to the child:
Dictionaries from the relevant time period define “reside” as “to dwell permanently or continuously: occupy a place as one’s legal domicile” (Merriam Webster’s New Collegiate Dictionary 1003 [9th ed 1986]) and “to have a settled abode for a time; have one’s residence or domicile” (Webster’s Third New International Dictionary 1931 [1981]). According to Webster’s Third, “reside” is the “preferred term for expressing the idea that a person keeps or returns to a particular dwelling place as his fixed, settled, or legal abode” … . Black’s Law Dictionary notes that “residence” “is made up of fact and intention, the fact of abode and the intention of remaining, and is a combination of acts and intention. Residence implies something more than mere physical presence and something less than domicile” (Black’s Law Dictionary 1176 [5th ed 1979]). * * *
Nothing in the legislative history of Local Law 1 suggests that the City Council meant anything other than this understanding of the term “reside.” We presume the City was familiar with the common meaning and usage of the words it used as well as existing decisional law …, which, in this case, understood residence as something more than physical presence but something less than domicile — living in a particular place with the intent to retain it as a residence … . Had the City intended to expand the meaning of the word “reside” to include children who do not actually live in an apartment but spend significant amounts of time there, it could have used words to that effect … . Yaniveth R. v LTD Realty Co., 2016 NY Slip Op 02550, CtApp 4-5-16
NEGLIGENCE (LEAD PAINT, LANDLORD OWED NO STATUTORY DUTY TO ABATE LEAD IN AN APARTMENT WHERE THE CHILD SPENT 50 HOURS PER WEEK IN THE CARE OF HER GRANDMOTHER, LAW REQUIRING LEAD PAINT ABATEMENT APPLIES ONLY TO APARTMENTS WHERE A CHILD RESIDES)/LEAD PAINT (LANDLORD OWED NO STATUTORY DUTY TO ABATE LEAD IN AN APARTMENT WHERE THE CHILD SPENT 50 HOURS PER WEEK IN THE CARE OF HER GRANDMOTHER, LAW REQUIRING LEAD PAINT ABATEMENT APPLIES ONLY TO APARTMENTS WHERE A CHILD RESIDES)/LANDLORD-TENANT (LEAD PAINT, LANDLORD OWED NO STATUTORY DUTY TO ABATE LEAD IN AN APARTMENT WHERE THE CHILD SPENT 50 HOURS PER WEEK IN THE CARE OF HER GRANDMOTHER, LAW REQUIRING LEAD PAINT ABATEMENT APPLIES ONLY TO APARTMENTS WHERE A CHILD RESIDES)
The First Department, in a lease-dispute, determined the tenant’s claim that a provision of the lease requiring percentage rent (based upon the income of the tenant) was orally waived did not raise a question of fact. The lease specifically required any waiver to be in writing. The court explained when an oral waiver can be valid, despite the written-waiver requirement:
An agreement in a lease providing that no waiver of a term shall be inferred absent a writing to that effect is enforceable … . Thus, “if the only proof of an alleged agreement to deviate from a written contract is the oral exchanges between the parties, the writing controls” … . Tenant correctly notes that the parties to a contract may, by mutual agreement, disregard a no-waiver clause. However, some performance confirming the modification must be present, and it must be “unequivocally referable to the oral modification” … As stated by this Court, in the context of a lease dispute, there must be “sufficient indicia that the reasonable expectations of both parties under the original lease were supplanted by subsequent actions” … . …
Here, tenant has attempted to establish that it did not pay percentage rent over the years because landlord had orally waived the requirement. However, tenant has failed to establish that nonpayment of the percentage rent was unequivocally referable to the alleged statement … . To be sure, where a party orally waives a contract provision requiring the other party to perform an affirmative act, it may be difficult for the other party to establish the waiver other than by demonstrating that it did not do the thing it was originally required to do. Nevertheless, a nonbreaching party should not have to litigate the issue based only on the breaching party’s unsupported and uncorroborated representation that it orally waived a provision. This is the very reason why many contracts require waivers to be in writing. Such a bald representation is all tenant presents here. Accordingly, it has failed to raise an issue of fact. Paramount Leasehold, L.P. v 43rd St. Deli, Inc., 2016 NY Slip Op 01258, 1st Dept 2-23-16
CONTRACT LAW (NO QUESTION OF FACT RAISED ABOUT ALLEGED ORAL WAIVER IN THE FACE OF A WRITTEN-WAIVER REQUIRMENT IN THE LEASE)/LANDLORD-TENANT (NO QUESTION OF FACT RAISED ABOUT ALLEGED ORAL WAIVER IN THE FACE OF A WRITTEN-WAIVER REQUIRMENT IN THE LEASE)/WAIVER (NO QUESTION OF FACT RAISED ABOUT ALLEGED ORAL WAIVER IN THE FACE OF A WRITTEN-WAIVER REQUIRMENT IN THE LEASE)
The First Department determined the landlord’s failure to procure a rental permit in accordance with the Town Code did not provide the tenant, Fairfield, with a defense to the landlord’s action to collect rent:
… [P]laintiff does not dispute that it failed to comply with the provisions of the Town of Southampton Code that, as enacted in 2008, require an owner to obtain a $200 biennial rental permit before the rental period commences or within 30 days after receiving actual notice from the Town of the failure to comply (see §§ 270-5[A][1]; 270-8[A]; 270-13). However, under the circumstances, the Town Code does not provide a defense to plaintiff’s claims against the Fairchild defendants, because it “does not provide expressly that its violation will deprive the parties of their right to sue on the contract, and the denial of relief is wholly out of proportion to the requirements of public policy or appropriate individual punishment” … . While the Town Code addresses matters affecting public welfare, it does not expressly preclude [*2]an owner from bringing a lawsuit to collect rent, it imposes relatively minor sanctions to redress violations, and it allows the owner to cure a default after receiving actual notice of a violation (Town Code §§ 270-5; 270-13; 270-19). We conclude that the Fairchild defendants, having occupied the premises and raised a patently inadequate forgery defense, should not be permitted to rely on the provisions of the Town Code “as a sword for personal gain rather than a shield for the public good,” i.e., to avoid payment of rent due under the lease … or enforcement of the absolute and unconditional guaranty given by Fairchild to induce plaintiff to enter into the lease … . 1424 Millstone Rd., LLC v James B. Fairchild, LLC, 2016 NY Slip Op 01250, 1st Dept 2-18-16
LANDLORD-TENANT (LANDLORD’S FAILURE TO PROCURE A TOWN RENTAL PERMIT IS NOT A DEFENSE TO THE LANDLORD’S ACTION TO COLLECT RENT)/MUNICIPAL LAW (LANDLORD’S FAILURE TO PROCURE A TOWN RENTAL PERMIT IS NOT A DEFENSE TO THE LANDLORD’S ACTION TO COLLECT RENT)
The First Department, over a two-justice dissent, determined the board of defendant residential cooperative corporation unreasonably withheld consent for the shares and proprietary lease to be transferred to the two sons of the deceased holders of the shares and proprietary lease. The case turned on the language of the proprietary lease. The application was made by the two sons, only one of whom was to live in the apartment. The dissent emphasized the term “a family member,” arguing the proprietary lease did not allow a transfer to more than one family member. Estate of Del Terzo v 33 Fifth Ave. Owners Corp., 2016 NY Slip Op 01039. 1st Dept 2-11-16
CORPORATION LAW (RESIDENTIAL COOPERATIVE, BOARD UNREASONABLY WITHHELD CONSENT TO TRANSFER OF SHARES AND PROPRIETARY LEASE)/RESIDENTIAL COOPERATIVE (BOARD UNREASONABLY WITHHELD CONSENT TO TRANSFER OF SHARES AND PROPRIETARY LEASE)/PROPRIETARY LEASE (RESIDENTIAL COOPERATIVE, BOARD UNREASONABLY WITHHELD CONSENT TO TRANSFER OF SHARES AND PROPRIETARY LEASE)
The Second Department, reversing Supreme Court, determined there was a question of fact whether tenant was entitled to compensation for trade fixtures in property to which the village acquired title by eminent domain. The court explained the relevant law:
Providing compensation to a trade fixture owner is in derogation of the common-law rule that government taking of real property encompasses the land and everything annexed thereto, including trade fixtures … . Under the trade fixture rule, a tenant who owns the trade fixture, but not the property to which the fixture is annexed, may seek compensation for trade fixtures it had a right to remove, but elected not to remove, and thus remained annexed to the property at the time of the taking … . A tenant’s right to compensation for fixtures installed on the leasehold exists despite provisions in the lease which terminate the lease in the event of a condemnation. Such provisions have been interpreted as ” an agreement between landlord and tenant that the tenant shall receive out of the award no compensation for his leasehold interest. Even so, the tenant retains the right to compensation for his interest in any annexation to the real property which but for the fact that the real property has been taken, he would have had the right to remove at the end of his lease'” … . Matter of Village of Spring Val., N.Y.. (Sport Club Intl., Inc.), 2016 NY Slip Op 00985, 2nd Dept 2-10-16
NEGLIGENCE (QUESTION OF FACT WHETHER EMPLOYEE WAS ACTING WITHIN THE SCOPE OF EMPLOYMENT AT THE TIME OF THE CAR ACCIDENT)/EMPLOYMENT LAW (QUESTION OF FACT WHETHER EMPLOYEE WAS ACTING WITHIN THE SCOPE OF EMPLOYMENT AT THE TIME OF THE CAR ACCIDENT)/RESPONDEAT SUPERIOR (QUESTION OF FACT WHETHER EMPLOYEE WAS ACTING WITHIN THE SCOPE OF EMPLOYMENT AT THE TIME OF THE CAR ACCIDENT)
The Fourth Department determined defendant landlord should not have been granted summary judgment in this lead-paint-injury action. [The case presents another example of a defendant’s failure to affirmatively address all possible theories of recovery in summary-judgment-motion papers.] Defendant failed to demonstrate, inter alia, the absence of a hazardous condition and her lack of actual or constructive notice of the condition. On the issue of constructive notice, the court wrote:
In Chapman, the Court of Appeals [92 NY2d 9] addressed constructive notice, writing that “a triable issue of fact [on notice] is raised when [the evidence] shows that the landlord (1) retained a right of entry to the premises and assumed a duty to make repairs, (2) knew that the apartment was constructed at a time before lead-based interior paint was banned, (3) was aware that paint was peeling on the premises, (4) knew of the hazards of lead-based paint to young children and (5) knew that a young child lived in the apartment” (id. at 15). Here, it is undisputed that defendant retained a right of entry and assumed a duty to make repairs; that she knew that the residence was constructed before lead-based paint was banned; and that she knew that young children lived in the apartment. Rodrigues v Lesser, 2016 NY Slip Op 00836, 4th Dept 2-5-16
The Third Department, affirming Supreme Court, found plaintiffs-landlord had accepted defendant-tenant’s surrender of the premises by operation of law. The tenant, upon sufficient notice to the landlord, had moved most of its operation to a new location but continued to pay rent. The landlord then rented parts of the premises to two new tenants and changed the locks so defendant could not access the premises. At that point the tenant stopped paying rent and the landlord sued for the rent for the remaining portion of the lease. The court explained the elements of “surrender by operation of law:”
“A surrender by operation of law occurs when the parties to a lease both do some act so inconsistent with the landlord-tenant relationship that it indicates their intent to deem the lease terminated” … . A surrender by operation of law is inferred from the conduct of the parties, namely, the tenant’s abandonment of the demised premises and the landlord’s acceptance thereof; whether a surrender by operation of law has occurred in a particular case is generally a factual determination … .
Here, defendant established that plaintiffs relet parts of the premises without notice to defendant and refused to provide defendant with a key to the remaining premises, after having changed the locks. Plaintiffs also placed all the utility accounts in their own names. Plaintiffs’ assertion that a question of fact was raised as to whether there was construction in the leased premises precluding defendant’s use is unavailing. By their own account, plaintiffs refused to provide defendant with new keys and access to the “area in question” due to “ongoing construction” and liability concerns. Whether or not plaintiffs were simply replacing a generator outside the leased premises does not alter their refusal to allow defendant access to the premises. Nor do we overlook the fact that, in their complaint, plaintiffs seek to recover the full rent payable under the lease, without offset for rent received from the two new tenants … . Fragomeni v Aim Servs., Inc., 2016 NY Slip Op 00563, 3rd Dept 1-28-16
LANDLORD-TENANT (SURRENDER BY OPERATION OF LAW)/SURRENDER BY OPERATION OF LAW (LANDLORD-TENANT)
The Second Department, reversing Supreme Court, determined defendant was not entitled to summary judgment in a slip and fall case because defendant did not demonstrate the non-party sublessee was responsible for maintaining the premises:
“[A]n out-of-possession landlord may be liable for injuries occurring on the premises if it has retained control of the premises, is contractually obligated to perform maintenance and repairs, or is obligated by statute to perform such maintenance and repairs'” … . However, “where the premises have been leased and subleased and the subtenant assumes the exclusive obligation to maintain the premises, both the out-of-possession landlord and the out-of-possession lessee/sublessor will be free from liability for injuries to a third party caused by the negligence of the subtenant in possession” … .
Here, viewing the evidence in the light most favorable to the plaintiff, the defendant failed to establish, prima facie, that the nonparty sublessee assumed the exclusive obligation to maintain the premises, and that the defendant, as the lessee/sublessor, had no duty to maintain the premises … . Since the defendant failed to meet its initial burden as the movant, it is not necessary to review the sufficiency of the plaintiff’s opposition papers … . Iturrino v Brisbane S. Setauket, LLC, 2016 NY Slip Op 00480, 2nd Dept 1-27-16
NEGLIGENCE (SLIP AND FALL, DEFENDANT DID NOT DEMONSTRATE SUBLESSEE WAS RESPONSIBLE FOR MAINTAINING THE PREMISES)/LANDLORD-TENANT (SLIP AND FALL, DEFENDANT DID NOT DEMONSTRATE SUBLESSEE WAS RESPONSIBLE FOR MAINTAINING THE PREMISES)/SLIP AND FALL (LANDLORD-TENANT, DEFENDANT DID NOT DEMONSTRATE SUBLESSEE WAS RESPONSIBLE FOR MAINTAINING THE PREMISES)
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