You are here: / Landlord-Tenant
,

Landlord Cannot Recover Lost Rent In Action Based Upon Breach of Covenant to Keep the Premises in Good Repair

Over the dissents of two justices, the First Department determined that lost rent was not recoverable for breach of a lease provision requiring a tenant to keep the premises in good repair:

It is well settled that lost rent is not recoverable as damages for breach of a lease covenant requiring a tenant to keep the premises in good repair. An action alleging breach of such a covenant can be brought either before or after the expiration of the lease term … . In Appleton v Marx (191 NY 81 [1908]), the Court of Appeals identified two different measures of damages, depending on when the action is commenced. If the action is brought before the lease expires, a landlord can recover “the injury done to the reversion” (id. at 83), i.e. “the difference between the value of the premises with the improvement and absent the improvement” … . On the other hand, if the action is brought after the expiration of the lease term, “the measure of the damages is the cost of putting the premises into repair” … . In neither circumstance, however, did the Court of Appeals provide that lost rent is included in the measure of damages.  Building Serv Local 32B-J Pension Fund v 101 Ltd Partnership, 2014 NY Slip Op 01544, 1st Dept 3-11-14

 

, ,

Termination of Petitioner’s Tenancy Based Upon An Isolated Angry Outburst Targeting a Housing Authority Employee Is “Shocking to the Conscience”

The First Department, after finding substantial evidence to substantiate the charges made by the housing authority (NYCHA) against the tenant-petitioner, determined the termination of the tenancy was “shocking to the conscience.” Petitioner had acted out angrily in a confrontation with a housing authority employee:

…[W]e find that termination of petitioner’s tenancy, is, based on the reviewable facts in this record, a penalty that is shocking to the conscience and that must be vacated. We have found this to be so in similar cases of tenants engaging in fits of rage targeted at NYCHA employees, where the conduct was isolated or specifically related to circumstances that gave some explanation for the behavior. For example, in Matter of Winn v Brown …, this Court found that, while NYCHA’s determination of nondesirability was supported by substantial evidence of the petitioner’s actions, which “[included] screaming profanities, racial epithets and making threats to respondent’s employees,” the termination of the petitioner’s tenancy was shocking to the conscience given that the incidents in question occurred when the tenant was having difficulty securing a transfer despite threats being made against the life of her son. In Matter of Spand v Franco …, this Court remanded to NYCHA for imposition of a lesser penalty where the tenant engaged in conduct that was “serious” and “appropriately condemned,” but eviction was disproportionate because the incident was isolated, the tenant was the mother of three small children and there was no evidence of other problems which posed a risk to other people or property. Even where a tenant “accosted” a NYCHA representative, termination was considered too harsh because the incident was isolated and because, like here, the target of the tenant’s wrath was not seriously injured … . Matter of Rock v Rhea, 2014 NY Slip Op 01268, 1st Dept 2-25-14

 

, , ,

Public Trust Doctrine Re: Allowing a Restaurant in a Public Park/License and Lease Characteristics Compared

In a full-fledged opinion by Judge Graffeo, the Court of Appeals determined that a the city’s allowing a restaurant to operate in a public park did not violate the public trust doctrine and the arrangement between the city and the restaurant was a valid license, not a lease (which would have required approval by the legislature):

Under the public trust doctrine, dedicated parkland cannot be converted to a non-park purpose for an extended period of time absent the approval of the State Legislature … . * * * … [A]lthough it is for the courts to determine what is and is not a park purpose, … the Commissioner enjoys broad discretion to choose among alternative valid park purposes. Observing that restaurants have long been operated in public parks, we [in 795 Fifth Ave Corp v City of New York, 15 NY2d 221] rejected plaintiffs' public trust claim, holding that they could show only a “difference of opinion” as to the best way to use the park space and that this “mere difference of opinion [was] not a demonstration of illegality”… . * * *

We have stated that parkland cannot be leased, even for a park purpose, absent legislative approval … . * * *

A document is a lease “if it grants not merely a revocable right to be exercised over the grantor's land without possessing any interest therein but the exclusive right to use and occupy that land” … . It is the conveyance of “absolute control and possession of property at an agreed rental which differentiates a lease from other arrangements dealing with property rights” …. . A license, on the other hand, is a revocable privilege given “to one, without interest in the lands of another, to do one or more acts of a temporary nature upon such lands” … . That a writing refers to itself as a license or lease is not determinative; rather, the true nature of the transaction must be gleaned from the rights and obligations set forth therein. Finally, a broad termination clause reserving to the grantor “the right to cancel whenever it decides in good faith to do so” is strongly indicative of a license as opposed to a lease … . Union Square Park Community Coalition Inc v New York City Department of Parks and Recreation, 17, CtApp 2-20-14

 

, , , ,

Eugenics Argument Should Be Rejected in a Lead-Paint Poisoning Case/Notice Criteria Explained

In a lead-paint poisoning case, the Fourth Department determined that the trial court’s denial of plaintiff’s motion to preclude the defendant from “claiming socioeconomic, genetic, eugenic or euthenics alternative and/or negating cause[s]” was not appealable. But Justice Fahey made it clear in a concurring opinion that the eugenics argument should be rejected.  In addition the Fourth Department explained the notice criteria in lead-paint cases:

We note at the outset that the appeal from the order insofar as it denied that part of the motion seeking to “preclud[e] defendants’ attorneys and hired experts from claiming socioeconomic, genetic, eugenic or euthenics alternative and/or negating cause[s]” must be dismissed.  “ ‘[A]n evidentiary ruling, even when made in advance of trial on motion papers constitutes, at best, an advisory opinion which is neither appealable as of right nor by permission’ ”… .

[Justice Fahey, in a concurring opinion, wrote:] … I am troubled by the concept that an individual’s family history may be relevant to establishing a baseline for the purpose of measuring cognitive disability or delay.  I acknowledge that an explanation for cognitive problems may arise from one’s personal history, but as a conceptual and general matter I cannot agree with the principle of the eugenics defense that defendants propose here.  To my mind, the family of a plaintiff in a lead paint case does not put its medical history and conditions at issue, and the attempt to establish biological characteristics as a defense to diminished intelligence, i.e., a eugenics argument, cannot be countenanced and is something I categorically reject.

[With respect to notice, the Fourth Department explained:] .  “It is well settled that in order for a landlord to be held liable for injuries resulting from a defective condition upon the premises, the plaintiff must establish that the landlord had actual or constructive notice of the condition for such a period of time that, in the exercise of reasonable care, it should have been corrected” … .  Under the circumstances of this case, we conclude that there is an issue of fact whether defendants had notice of the dangerous lead paint condition in the subject apartment “for such a period of time that, in the exercise of reasonable care, it should have been corrected” …  With respect to constructive notice, we note that the Court of Appeals in Chapman v Silber (97 NY2d 9, 15) wrote that constructive notice of a hazardous, lead-based paint condition may be established by proof “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 leadbased 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.” Heyward v Shanne, 1358, 4th Dept 2-7-14

 

,

Tenant Who Successfully Defended a Landlord’s Holdover Action Entitled to Attorney’s Fees

The First Department, in a full-fledged opinion by Justice Renwick, over a dissent, determined that a tenant who prevailed in the defense of the landlord’s holdover proceeding was entitled to attorney’s fees pursuant to Real Property Law 24:

We now find that, having prevailed in his defense of the landlord’s holdover proceeding, the tenant is entitled to recover attorneys’ fees pursuant to Real Property Law § 234. That section states that when a lease provides for a landlord’s recovery of attorneys’ fees resulting from a tenant’s failure to perform any covenant under a lease, a reciprocal covenant “shall be implied” for the landlord to pay attorneys’ fees incurred as a result of either its failure to perform a covenant under the lease or a tenant’s successful defense:

“Whenever a lease of residential property shall provide that in any action or summary proceeding the landlord may recover attorneys’ fees and/or expenses incurred as the result of the failure of the tenant to perform any covenant or agreement contained in such lease, or that amounts paid by the landlord therefor shall be paid by the tenant as additional rent, there shall be implied in such lease a covenant by the landlord to pay to the tenant the reasonable attorneys’ fees and/or expenses incurred by the tenant as the result of the failure of the landlord to perform any covenant or agreement on its part to be performed under the lease or in the successful defense of any action or summary proceeding commenced by the landlord against the tenant arising out of the lease.”

The overriding purpose of the statute is to provide a level playing field between landlords and tenants, by creating a mutual obligation that is an incentive to resolve disputes quickly and without undue expense … . As a remedial statute, Real Property Law § 234 should be accorded its broadest protective meaning consistent with legislative intent … . The outcome of any claim pursuant to Real Property Law § 234 depends upon an analysis of the specific language of the lease provision at issue in each case to discern its meaning and import … . Graham CT Owner’s Corp v Taylor, 2014 NY Slip Op 00311, 1st Dept 1-21-14

 

,

Uncovered Baseboard Radiator May Constitute an Unsafe Condition Created by Landlord

The First Department determined there were questions of fact about whether the landlord assumed a duty to cover a baseboard heating unit, whether the landlord created an unsafe condition by removing the baseboard heating unit’s cover, and whether the uncovered unit needed repairs or was defective.  The infant plaintiff, who suffers from mental retardation and cerebral palsy, was burned when her face and hand was in contact with an uncovered baseboard radiator for an unknown period of time.  Nina W v NDI King Ltd Partnership, 2013 NY Slip Op 08202, 1st Dept 12-10-13

 

,

“Rent Paid In Advance” Lease Enforced/Insufficient Proof of Oral Modification

In a full-fledged opinion by Judge Read, the Court of Appeals determined the Appellate Division correctly held the tenant was obligated to pay an annual rent in advance and the proof was insufficient to demonstrate any contrary oral modification of the lease.  The Court explained the “rent paid in advance” concept and the criteria for oral modification in the face of a clause prohibiting it:

Under the common law, rent is consideration for the right of use and possession of the leased property that a landlord does not earn until the end of the rental period (…1 Friedman & Randolph, Friedman on Leases § 5:1.1 [5th ed 2013]).  This presumption may be altered, however, by the express terms of the parties’ lease such that rent is to be paid at the beginning of the rental period rather than the end (…1 Robert Dolan, Rasch’s Landlord and Tenant § 12:23 [4th ed 1998]; 1 Friedman & Randolph § 5:1.1). When a lease sets a due date for rent, that date is the date on which the tenant’s debt accrues (see 1 Friedman & Randolph § 5:1.1… ).  Rent paid “in advance” (i.e. at the beginning of the term) is unrecoverable if the lease is terminated before the completion of the term, unless the language of the lease directs otherwise … * * *

When the parties dispute whether an oral agreement has been formed, it is the conduct of the party advocating for the oral agreement that is “determinative,” although the conduct of both parties may be relevant … .  This is because the equity doctrine is designed to prevent a party from inducing full or partial performance from another and then claiming the sanctuary of the Statute of Frauds or section 15-301 when suit is brought … .  Eujoy Realty Corp v Van Wagner Communications LLC, 179, CtApp 11-26-13

 

,

Lease Which Purported to Deregulate Rent-Controlled Apartment Is Void As Against Public Policy

In a full-fledged opinion by Judge Mazzarelli, the First Department determined that a lease (called the “New Agreement”) which purported to deregulate a rent-controlled apartment was void as against public policy:

In Drucker v Mauro (30 AD3d 37, 39 [1st Dept 2006], appeal dismissed 7 NY3d 844 [2006]) this Court stated:

“It is well settled that the parties to a lease governing a rent-stabilized apartment cannot, by agreement, incorporate terms that compromise the integrity and enforcement of the Rent Stabilization Law. Any lease provision that subverts a protection afforded by the rent stabilization scheme is not merely voidable, but void (Rent Stabilization Code [9 NYCRR] § 2520.13), and this Court has uniformly thwarted attempts, whether by mutual consent or by contract of adhesion, to circumvent regulated rent maximums.”

Even an agreement that modifies the rent laws in a manner favorable to the tenant is of no effect (id. at 41). The New Agreement does not merely modify the rent regulations; it declares them inapplicable to the apartment. Without question, then, the New Agreement is void. We note that, although Drucker addressed only agreements to deregulate rent-stabilized apartments, there is no logical reason why the same principle should not apply to the rent-controlled apartment at issue here.  Extell Belnord LLC v Uppman, 2013 NY Slip Op 07697, 1st Dept 11-19-13

, ,

Lease; Services Agreement Did Not Allow Building Owner to Recover for Condition of Property

In a full-fledged opinion by Judge Smith, the Court of Appeals determined that plaintiffs, the building owners, could not recover damages related to the condition of the property upon the termination of the lease.  The property was used as a homeless shelter.  The City of New York entered into a Services Agreement with The Salvation Army to run the shelter.  The Salvation Army leased the property from the property owners. The City, in the Services Agreement, was required to pay The Salvation Army’s obligations to the property owners under the lease. The Court wrote:

The Lease is clear that, as a general proposition, The Salvation Army is not obliged to pay more to plaintiffs than it can recover from the City, and it is equally clear that The Salvation Army must do what it reasonably can to recover what the City owes it.  If The Salvation Army breached its duty to use commercially reasonable efforts to enforce a City obligation, it could not rely on the City’s non-payment of that obligation to defeat plaintiffs’ claim.  …[H]owever, … the complaint fails to allege any commercially reasonable step that The Salvation Army should have taken to recover money from the City. Plaintiffs do not identify any provision of the Services Agreement under which the City owes money to The Salvation Army that The Salvation Army failed to collect.  JFK Holding Company LLC v City of New York…, 196, CtApp 11-14-13

 

, ,

Improper Notice of Benefit Termination; Four-Month S/L Never Triggered; Termination Annulled

The Second Department determined the four-month statute of limitations for Article 78 review was never triggered because the NYC Housing Authority’s (NYCHA’s) failed to provide proper notice of termination of Section 8 housing benefits.  Therefore the termination was properly annulled and the subsidy was properly reinstated:

Pursuant to paragraph 22(f) of the Williams first partial consent judgment, the four-month statute of limitations of CPLR 217 begins to run on the date of receipt of the NYCHA’s notice of default letter … . Paragraph 22(f) cannot be read in a vacuum. Relying on contract principles, as urged by the NYCHA, and reading the Williams first partial consent judgment as a whole, we conclude that the NYCHA has the burden of satisfying the condition precedent of serving all three notices upon the Section 8 participant before its determination to terminate a participant’s subsidy can be considered final and binding upon the participant … . * * *

Here, the NYCHA failed to show that it mailed two of the three required notices. It did not present any proof that it mailed the initial warning letter and it submitted insufficient proof with respect to the mailing of the T-1 letter. As a result of this failure to abide by the notice provisions set forth in the Williams first partial consent judgment, the statute of limitations was not properly triggered and did not begin to run … . Matter of Dial v Rhea, 2013 NY Slip Op 07475, 2nd Dept 11-13-13

 

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