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THERE WERE QUESTIONS OF FACT WHETHER DEFENDANTS IN THIS DOG-BITE CASE, INCLUDING THE LANDLORD, WERE AWARE OF THE DOG’S VICIOUS PROPENSITIES; THE PRE-DISCOVERY SUMMARY JUDGMENT MOTION WAS PREMATURE; THE ACTION WAS NOT FRIVOLOUS; THE DEFENDANTS WERE NOT ENTITLED TO ATTORNEY’S FEES (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendants in this dog-bite case were not entitled to summary judgment, the action was not frivolous, and defendants were not entitled to attorney’s fees. In addition, the summary judgment motion, made before discovery, was deemed premature. The court found there were questions of fact whether defendants, including the landlord (held to an ordinary negligence standard) were aware of the dog’s vicious propensities. The relationships among the parties and the unsuccessful arguments made by defendants in support of summary judgment are too detailed to fairly summarize here:

… “[A]n owner of a dog may be liable for injuries caused by that animal only when the owner had or should have had knowledge of the animal’s vicious propensities” … . “Once such knowledge is established, an owner faces strict liability for the harm the animal causes as a result of those propensities” … . “Strict liability can also be imposed against a person other than the owner of an animal which causes injury if that person harbors or keeps the animal with knowledge of its vicious propensit[ies]” … .

… “[A] landlord who, with knowledge that a prospective tenant has a vicious dog which will be kept on the premises, nonetheless leases the premises to such tenant without taking reasonable measures, by pertinent provisions in the lease or otherwise, to protect persons who might be on the premises from being attacked by the dog may be held liable [under a negligence standard] to a person who while thereafter on the premises is bitten by the dog” … . When, “during the term of the leasehold[,] a landlord becomes aware of the fact that [the] tenant is harboring an animal with vicious propensities, [the landlord] owes a duty to protect third persons from injury . . . if [the landlord] ‘had control of the premises or other capability to remove or confine the animal’ ” … . Michael P. v Dombroski, 2022 NY Slip Op 07318, Fourth Dept 12-23-22

Practice Point: A landlord who is aware of a dog’s vicious propensities can be held liable in a dog-bite case under a standard negligence theory.

 

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ALTHOUGH THE AGREEMENT BETWEEN PLAINTIFF COUNTRY CLUB AND DEFENDANT FOR THE CONSTRUCTION, MAINTENANCE AND USE OF A BOAT SLIP WAS A LICENSE, NOT A LEASE, THE LICENSE, BY THE TERMS OF THE AGREEMENT, WAS NOT TERMINABLE AT WILL BY THE COUNTRY CLUB; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the agreement between plaintiff country club and defendant concerning the construction, maintenance and use of a boat slip was a license, not a lease, but, under the terms of the agreement, the license was not terminable at will by the country club:

… [T]he terms of the agreement unambiguously state that defendant is required to pay the annual maintenance fee and to comply with plaintiff’s rules and policies, thereby establishing through implication that plaintiff may terminate the license only when defendant fails to comply with those specified terms … . Plaintiff’s interpretation of the agreement as permitting plaintiff to terminate the license at will, despite the aforementioned provisions governing defendant’s obligations, renders those specific provisions nugatory, contrary to the general approach to interpreting contracts …

… [T]he agreement expressly permits defendant to terminate it and receive a return of the monies contributed pursuant to the payment agreement, less any monies owed to plaintiff. We agree with defendant that the express inclusion of a right of termination for her compels the conclusion that the exclusion of any corresponding express right for plaintiff to terminate the agreement was intentional … . … [The] structure of the agreement establishes that the license is not terminable at will by plaintiff. Skaneateles Country Club v Cambs, 2022 NY Slip Op 07315, Fourth Dept 12-23-22

Practice Point: Licenses for the use of real property, here the construction, maintenance and use of a boat slip, are not automatically terminable at will. Here the terms of the underlying agreement were interpreted to mean the license was terminable only if defendant breached the agreement.

 

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DEFENDANT OUT-OF-POSSESSION LANDLORD WAS NOT RESPONSIBLE FOR MAINTENANCE OF THE STAIRWAY WHERE PLAINTIFF ALLEGEDLY SLIPPED AND FELL (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant in this stairway slip and fall case was an out-of-possession landlord who was not responsible for maintenance of the stairway treads:

Article 7(A)(i) of the lease imposed on Cava [the tenant] the obligation to maintain and repair the nonstructural portions of the demised premises … . The testimonial evidence established that Cava, consistent with its obligations under the lease, assumed responsibility over the subject staircase … . Although the lease granted defendants the right to re-enter to make repairs, the stairway condition was not a significant structural or design defect that was contrary to a specific statutory safety provision … . Kamara v 323 Pas Owner LLC, 2022 NY Slip Op 07296, First Dept 12-22-22

Practice Point: The tenant, pursuant to the lease, had assumed responsibility for maintenance of the stairway where plaintiff fell. The defendant out-of-possession landlord was entitled to summary judgment.

 

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PLAINTIFF-TENANT’S COMPLAINT ALLEGED DEFENDANT-LANDLORD’S STIPULATION WITH THE PRIOR TENANT IN 2000 ILLEGALLY DECONTROLLED THE APARTMENT; THE MAJORITY DISMISSED THE COMPLAINT; TWO-JUSTICE DISSENT (FIRST DEPT).

The First Department, reversing Supreme Court, over a two-justice dissent, determined plaintiff’s complaint should have been dismissed. “Plaintiff, the current tenant of the subject apartment, commenced this action seeking a declaration that her tenancy is subject to the Rent Stabilization Law (RSL) and that the premises were illegally decontrolled in 2000 when defendant owner and nonparty Edward McKinney reached a ‘private agreement’ circumventing initial rent registration procedures for decontrolling the apartment.” The decision and the dissent are detailed and fact-specific and cannot be fairly summarized here:

An agreement by a tenant to waive the benefit of any provision of the rent control law is expressly prohibited and void (9 NYCRR 2200.15 …). However, when McKinney and defendant settled their dispute over McKinney’s status, McKinney was not a tenant … . He was not on the lease and had no evident rights, other than being an occupant of the apartment who claimed that he had succession rights when Brown died. … Defendant, on the other hand, denied that McKinney was anything other than a squatter/licensee or possible roommate of the deceased. By entering into the 2000 stipulation, both sides, represented by counsel, resolved their dispute as to whether McKinney had any statutory right to the apartment. By doing so, McKinney and defendant chose the certainty of settlement, rather than the uncertainty of a judicial declaration about McKinney’s status … .

From the dissent:

… I would find that plaintiff has sufficiently pleaded that the stipulation that McKinney and defendant executed in 2000 (the 2000 stipulation) was void under applicable statutes, as interpreted by our Court and the Court of Appeals. Accordingly, I would vote to affirm the portion of the motion court’s decision that denied defendant’s motion to dismiss the first, third and fourth causes of action. Liggett v Lew Realty LLC, 2022 NY Slip Op 07000, First Dept 12-8-22

Practice Point: Plaintiff-tenant alleged defendant-landlord illegally decontrolled the apartment in 2000 by entering an agreement (a stipulation) with the prior tenant. The majority held the complaint did not state a cause of action. The two dissenters disagreed.

 

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THERE CAN BE NO REPUDIATION WHERE THERE HAS BEEN A BREACH OF CONTRACT, TWO JUSTICE DISSENT (FIRST DEPT).

The First Department, over a two-justice dissent, determined plaintiff in this landlord-tenant dispute could not seek separate redress on a theory of repudiation for the breach of contract cause of action. The decision is fact-specific and cannot be fairly summarized here:

… [B]ecause a party cannot repudiate a contract it has already breached, if the landlord is found to have breached the lease in 2015, there can be no repudiation in 2021 … . * * *

From the dissent:

A party “cannot simultaneously pursue a breach of contract claim and an anticipatory breach claim premised on the same underlying conduct” … . However, where an obligation is ongoing or serial in nature, a subsequent material breach can support a claim on a theory of repudiation notwithstanding earlier claims for partial breach … . Audthan LLC v Nick & Duke, LLC, 2022 NY Slip Op 06880, First Dept 12-6-22

Practice Point: The majority held plaintiff could not seek redress on a theory of repudiation where there had been a breach of contract. There was a two-justice dissent.

 

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ALTHOUGH DEFENDANT PORT AUTHORITY OF NEW YORK AND NEW JERSEY (PANYNJ) WAS THE LESSOR OF THE PROPERTY WHERE PLAINTIFF WAS INJURED IN THIS LABOR LAW 241(6) ACTION, IT WAS AN “OWNER” WITHIN THE MEANING OF THE LABOR LAW AND, THEREFORE, WAS A PROPER DEFENDANT; ALTHOUGH PLAINTIFF WAS NOT AT THE CONSTRUCTION SITE, SHE WAS IN AN AREA USED TO CREATE MATERIALS FOR THE CONSTRUCTION SITE, WHICH IS COVERED BY THE LABOR LAW (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined Port Authority of New York and New Jersey (PANYNJ), although the lessor of the property where plaintiff was injured in this Labor Law 241 (1) action, was an “owner” within the meaning of the Labor Law and therefore was a proper defendant. Although plaintiff was not injured at the construction site, she was injured where materials were being prepared for use in the construction:

PANYNJ failed to establish its entitlement to summary judgment, as the record presents issues of fact as to whether PANYNJ was liable to plaintiff under Labor Law § 241(6). Although PANYNJ leased control of the property to RHCT and transferred responsibility for the maintenance of the terminal to RHCT, PANYNJ was nevertheless the owner of property for purposes of Labor Law § 241(6). The operating agreement between PANYNJ and RHCT permitted RHCT to use the property, and set out conditions on RHCT’s use of the property. The agreement also set forth the scope and manner of the work to be performed and provided that RHCT was required to provide PANYNJ with a monthly profit and loss report. The general manager for PANYNJ testified that RHCT was required to obtain PANYNJ’s consent to sublicense any portion of the property. Additionally, under the purchase order between Tutor Perini and TBTA, the owner of the bridge project, PANYNJ was to be paid a port security charge, among other charges.

As a result, the evidence created a sufficient nexus between PANYNJ and the project, and thus between PANYNJ and plaintiff, to support an imposition of liability under Labor Law § 241(6) … . Plaintiff’s task of grinding bevels on the deck panels to be installed on the bridge also falls under the Labor Law because the protections of the statute extend to areas where materials or equipment are being prepared to be used in construction … .Musse v Triborough Bridge & Tunnel Auth., 2022 NY Slip Op 06171, First Dept 11-3-22

Practice Point: Although defendant was a lessor of the property where plaintiff was injured in this Labor Law 241(6) action, it was an “owner” within the meaning of the Labor Law and therefore was a proper defendant. Even though plaintiff was not injured at the construction site, the Labor Law applies because she was injured in an area used to prepare materials for the construction site.

 

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THE LESSEE OF THE PROPERTY, INFOR, CONTRACTED FOR THE WORK BEING DONE AT THE TIME OF PLAINTIFF’S INJURY IN THIS LABOR LAW 240(1) ACTION; THEREFORE INFOR WAS AN “OWNER” WITHIN THE MEANING OF THE LABOR LAW AND WAS A PROPER DEFENDANT (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the lessee of the property (Infor) was a proper party in this Labor Law 240(1) action because it had contracted for the work done at the time of plaintiff’s injury:

Plaintiff claims he was drilling metal tracks onto a wall when the Baker scaffold on which he was standing overturned, causing him to fall and sustain injuries. 635 owned the building in which plaintiff was working, and defendant SL Green Realty Corp. (SL Green) was 635’s managing agent. Infor leased the premises from 635, and retained JRM as the general contractor to perform construction work. JRM, in turn, retained Montec and nonparty Premier Builders, Inc., plaintiff’s employer, as subcontractors to perform various aspects of the work. * * *

The Labor Law § 240(1) claim should be reinstated against Infor, as the court incorrectly concluded that Infor was not a proper Labor Law defendant. Although Infor leased the premises from 635, it may still be held liable as an “owner” under the statute because it contracted for the construction work being performed at the time of plaintiff’s accident … . For the same reasons that plaintiff is entitled to partial summary judgment against 635 and JMR, plaintiff’s motion for partial summary on the Labor Law § 240(1) claim against Infor should be granted, and Infor’s motion for summary judgment dismissing the claim against it should be denied. Otero v 635 Owner LLC, 2022 NY Slip Op 06172, First Dept 11-3-22

Practice Point: A lessee may be considered a property “owner” in a Labor Law 240(1) action when the lessee contracted for the work being done when the plaintiff was injured.

 

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IN THIS SLIP AND FALL CASE, THE LESSEE OF THE PROPERTY ABUTTING THE ALLEGEDLY DEFECTIVE SIDEWALK WAS NOT LIABLE FOR PLAINTIFF’S SLIP AND FALL; THERE WAS NO EVIDENCE THE CONDITION WAS CREATED BY THE LESSEE AND NO EVIDENCE OF AN AGREEMENT CREATING A DUTY ON THE PART OF THE LESSEE TO MAINTAIN THE SIDEWALK (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this slip and fall case, determined 7-Eleven. the lessee of the property abutting the sidewalk where plaintiff allegedly fell, could not be held liable for the allegedly dangerous condition of the sidewalk:

Administrative Code of the City of New York § 7-210(a) imposes a duty upon “the owner of real property abutting any sidewalk . . . to maintain such sidewalk in a reasonably safe condition.” “[A] lessee of property which abuts a public sidewalk owes no duty to maintain the sidewalk in a safe condition, and liability may not be imposed upon it for injuries sustained as a result of a dangerous condition in the sidewalk, except where the abutting lessee either created the condition, voluntarily but negligently made repairs, caused the condition to occur because of some special use, or violated a statute or ordinance placing upon the lessee the obligation to maintain the sidewalk which imposes liability upon the lessee for injuries caused by a violation of that duty” … . Additionally, “[a]s 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” … . Only “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, [may] the tenant . . . be liable to a third party” … . Here, the plaintiff failed to establish, prima facie, that 7-Eleven had any duty to maintain the sidewalk abutting the property it leased. Brady v 2247 Utica Ave. Realty Corp., 2022 NY Slip Op 06100, Second Dept 11-2-22

Practice Point: Under the NYC Administrative Code, the lessee of property abutting a sidewalk is not liable for a slip and fall caused by the condition of the sidewalk if the lessee did not create the condition and did not agree to maintain the sidewalk.

 

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A CITY CODE ENFORCEMENT OFFICER ORDERED PETITIONER-TENANT TO VACATE HER APARTMENT AFTER FINDING SOME WINDOWS DID NOT OPEN; PENDING THE INSTANT APPEAL, THE CITY AMENDED THE CODE TO ALLOW A HEARING IN THIS CIRCUMSTANCE (RELIEF REQUESTED BY THE PETITIONER); THE CODE ENFORCEMENT OFFICER WAS AN AGENT OF THE STATE AND PETITIONER WAS ENTITLED TO COSTS, DISBURSEMENTS AND COUNSEL FEES AS THE PREVAILING PARTY IN THIS ACTION AGAINST THE STATE (THIRD DEPT). ​

The Third Department, in a full-fledged opinion by Justice Fisher, determined petitioner-tenant was entitled to costs, disbursements and counsel fees in petitioner’s action against the city for ordering petitioner to vacate her apartment without first affording a hearing. The order to vacate was made after the code enforcement officer found windows in the apartment which could not be opened and an electrical problem. Before the appeal was heard, the city amended to code to provide an administrative hearing to those ordered to vacate their apartments. Petitioner was deemed to be a prevailing party and was therefore entitled to costs, disbursements and counsel fees:

Petitioner entered into a lease agreement for a second-floor apartment in the City of Schenectady … . … [P]etitioner contacted respondent City of Schenectady Code Enforcement Office and reported problems with the apartment including, among other things, that only three of the windows in the apartment could be opened. Following this complaint, the owner hired a repairperson to fix the windows … . … [A] code enforcement officer conducted an inspection of said premises. Upon finding that several of the second-floor windows still could not be opened and there was an electrical violation, the code enforcement officer issued an order to “immediately vacate” the second floor of the premises due to “sealed emergency rescue openings” and “unsafe conditions.” The order to vacate listed multiple violations of the Property Maintenance Code of New York State (19 NYCRR part 1226 [hereinafter PMCNYS]) and violations of the Code of the City of Schenectady. * * *

… [R]espondents argue that Supreme Court erred in awarding petitioner counsel fees because this matter is not a civil action against the state within the meaning of CPLR 8601 (a) and, nonetheless, respondents were substantially justified in their acts. We disagree. “CPLR 8601 (a) mandates an award of fees and other expenses to a prevailing party in any civil action brought against the state, unless the position of the state was determined to be substantially justified or that special circumstances render an award unjust” … .

… [G]iven [the] statutory and regulatory framework, we are satisfied that respondents’ code enforcement officer acted as a state agent in issuing the order in the course of his enforcement of the PMCNYS…. .

… [P]etitioners were expressly entitled to a post-deprivation administrative hearing pursuant to Property Maintenance Code of New York State § 103.2.1. That provision contemplates a prompt forum for a dispossessed occupant to address his or her concerns with the involved municipal officials. … [R]espondents’ disregard of petitioner’s repeated requests for such a hearing effectively deprived her of a meaningful opportunity to be heard. Respondents’ failure to follow up on the code violations only compounded the problem. Matter of Brown v City of Schenectady, 2022 NY Slip Op 05245, Third Dept 9-21-22

Practice Point: A tenant ordered to vacate an apartment by a code enforcement officer is entitled to a prompt hearing.

Practice Point: A municipal code enforcement officer is an agent of the state. Therefore, a suit against a municipal code enforcement officer is a suit against the state entitling the prevailing party to costs, disbursements and counsel fees.

 

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LANDLORD DID NOT DEMONSTRATE TENANT ABANDONED THE LEASED PREMISES AND WAS NOT ENTITLED TO RENT FOR THE PERIODS BEFORE AND AFTER TENANT WAS LOCKED OUT; TENANT WAS ENTITLED TO RECOVER THE VALUE OF THE PERSONAL PROPERTY WHICH REMAINED IN THE LEASED PREMISES AFTER THE LOCKOUT (THIRD DEPT).

The Third Department, reversing the plaintiffs’ verdict in this landlord-tenant dispute, determined plaintiffs did not demonstrate defendants had abandoned the leased premises, a restaurant. Therefore plaintiffs were not entitled to recover rent after defendants were locked out by the plaintiffs, and plaintiffs did not submit sufficient proof of the alleged rent arrears (prior to the lockout). Defendants were entitled to recover on their unjust enrichment counterclaim for the value of the personal property which remained in the restaurant after the lockout:

As relating to commercial premises, “a landlord may avail himself or herself of a lease provision permitting reentry upon breach of conditions as long as he or she reenters peaceably” … . Certain evidence indicating abandonment may include failure to pay bills and rent, surrender of keys and physical relocation of business or personal items previously kept at the subject property … . Contrary conduct found not to demonstrate an intent to abandon a premises includes conduct such as leaving commercial equipment on the premises, paying the utilities, paying lump sum arrears, negotiating the sale of the business that included the leasehold and threatening to call the police on a landlord over a lockout … .

At trial, plaintiffs offered limited evidence of abandonment, namely, that plaintiff Martin P. Patton drove by the restaurant several times in May 2018 or June 2018 and observed it was closed and that defendants were behind on rent, although Patton was not exactly sure what days or what times he drove by or the total amount of rent arrears.  In contrast, Chen [the tenant] testified that, although business was declining, he continued to pay the rent and began to contact potential buyers to take over the restaurant and lease. According to Chen, the restaurant operated the day before the lockout and, when he returned the next day to find the locks changed, he called plaintiffs, who did not respond to him, and then he called the police, who generated an incident report. Defendants entered into evidence several photographs of the premises depicting equipment, furniture, powered-on televisions, liquor bottles on display at the bar and other chattel owned by defendants … . Patton v Modern Asian, Inc., 2022 NY Slip Op 05192, Third Dept 9-15-22

Practice Point: Here the landlord was unable to prove at trial that the tenant had abandoned the leased premises. The landlord was not entitled to rent for the period before and after the tenant was locked out. The tenant was entitled to recover the value of the personal property remaining on the leased premises after the lockout.

 

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