23 E. 10 L.L.C. v Albert Apt. Corp.

23 E. 10 L.L.C. v Albert Apt. Corp. 2012 NY Slip Op 00640 Decided on January 31, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 31, 2012
Tom, J.P., Friedman, DeGrasse, Richter, Manzanet-Daniels, JJ.
6599 110796/07

[*1]23 East 10 L.L.C., etc., et al., Plaintiffs-Respondents,

v

Albert Apartment Corp., Defendant-Appellant.




Cantor Epstein & Mazzola, LLP, New York (Gary S. Ehrlich
of counsel), for appellant.
Moses & Singer LLP, New York (Jay R. Fialkoff of counsel),
for respondents.

Order and judgment (one paper), Supreme Court, New York County (Joan A. Madden, J.), entered October 25, 2010, which, to the extent appealed from as limited by the briefs, denied defendant-landlord's motion for summary judgment dismissing plaintiffs' second cause of action for declaratory and injunctive relief, granted the cross motion of plaintiff-tenant and plaintiff-subtenant for summary judgment as to their second cause of action, and adjudged and declared that the sidewalk entrance, vault space and basement corridors constituted an appurtenance, and that plaintiffs could resume usage of these areas, enjoined the landlord from interfering with plaintiffs' right to use and access the sidewalk entrance, vault space and basement corridors, and directed the landlord to provide plaintiff-tenant with keys to the sidewalk entrance to the basement of the building, unanimously modified, on the law, to the extent of granting, upon a search of the record, the landlord summary judgment dismissing, as moot, the sixth cause of action, for reformation of the parties' proprietary lease, and otherwise affirmed, with costs to be paid by defendant.

The landlord's argument that the sidewalk hatch that accesses the basement portion of the premises is a "mere convenience" and is "not essential" to its use as a restaurant is unavailing. As the motion court found, uncontroverted deposition testimony from the subtenant pizzeria's owner established that the daily use by the pizzeria of the hatch entrance for deliveries and garbage removal, and the added expense incurred by the pizzeria for extra worker hours needed due to the impractical and inconvenient use of the pizzeria's internal stairwell for all restaurant functions, established that the sidewalk access hatch to the basement, where the premises' kitchen and storage area is located, was a necessary appurtenance to the leasehold (see Second on Second Café, Inc. v Hing Sing Trading, Inc., 66 AD3d 255, 267 [2009]). The landlord's further argument, that plaintiffs should be bound by their own unilateral mistake for not incorporating the hatch-use language from the 1994 modified commercial lease into the new proprietary lease, is unavailing. As the motion court appropriately found, the parties previously agreed to plaintiffs' use of the sidewalk hatch access and, unless specially reserved, the appurtenant right passes to the tenant along with the demised premises (see Fabrycky, Inc. v Nad Realty Corp., 261 App Div 268, 269 [1941]). Further, plaintiffs continued to use the sidewalk hatch access for more than a year after the proprietary lease was executed, without interference from the landlord. [*2]Additionally, inasmuch as the premises was subleased continuously as a restaurant since the initial 1995 sublease was entered into, everything that was necessary to the use and enjoyment of the demised premises, and which had enabled the pizzeria to reasonably function, must be implied where it is not expressed in the lease (see Second on Second Café, Inc., 66 AD3d at 256).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 31, 2012

CLERK