Sherwood Complex v Vouzan

Sherwood Complex LLC v Vouzan 2004 NY Slip Op 24195 [4 Misc 3d 73] Accepted for Miscellaneous Reports Publication AT2 Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Monday, November 15, 2004

[*1] Sherwood Complex LLC, as Successor in Interest to Central Queens Properties Associates, Appellant,
v
Jocelyn Vouzan, Respondent.

Supreme Court, Appellate Term, Second Department, May 26, 2004

APPEARANCES OF COUNSEL

Creditor & Digrugilliers, LLP, Forest Hills (Renee Digrugilliers of counsel), for appellant. Alan J. Goldberg, Forest Hills, for respondent.

{**4 Misc 3d at 74} OPINION OF THE COURT

Memorandum.

Order insofar as appealed from reversed without costs, landlord's motion for summary judgment granted and tenant's cross motion for summary judgment denied.

In this holdover summary proceeding, the court below erred in holding that two satellite dishes installed by mounting the dishes upon boards projecting from tenant's windows were within the protection of Telecommunications Act of 1996 § 207 (Pub L 104-104, 110 US Stat 56) and its implementing regulations, as pertinent herein, extending section 207's protections to certain tenants of rental properties (In the Matter of Implementation of Section 207 of the Telecommunications Act of 1996Restrictions on Over-the-Air Reception Devices: Television [*2]Broadcast, Multichannel Multipoint Distribution and Direct Broadcast Satellite Services, 13 FCCR 23874 [1998] [hereinafter the Second OTARD Order]). The Second OTARD Order permits tenants, with some restrictions not at issue here, to install reception devices, including satellite dishes, "wherever they rent space outside of a building, such as balcony railings, patios, yards, gardens or any other similar area" (id.; see also Building Owners & Mgrs. Assn. Intl. v Federal Communications Commn., 254 F3d 89, 93 [DC Cir 2001]).

The clear implication of this wording is that the device in question will be physically located within outdoor space demised to tenant; even the existence of a "balcony railing" to which a device may be attached presupposes an actual balcony, as opposed to empty air space, over which the device can be located. The satellite dishes at issue in the present proceeding are affixed to the ends of boards which themselves protrude between one and two feet into the air space outside tenant's windows. This is an area that is clearly not physically within the demised premises and thus is not within the ambit of the Second OTARD Order as a matter of law (see e.g. Urban Horizons Tax Credit Fund v Zarick, 195 Misc 2d 779 [Civ Ct, Bronx County 2003];{**4 Misc 3d at 75} 2682 Kingsbridge Assoc. v Martinez, NYLJ, Jan. 22, 2003, at 20, col 6 [Civ Ct, Bronx County] [finding window guards, to which boards with antennas attached were affixed, were not within the demised premises]). Therefore, the lease, and in particular its provision that "No awnings, or other projections shall be attached to the outside walls of the building, or to the balconies or terraces and no blinds, shades, or guards, shall be attached to or hung in, or used in connection with any window or door of the demised premises, without the prior written consent of Owner," the sole provision cited in the predicate notice to this summary proceeding, governs the permissibility of tenant's satellite dish installation for purposes of this proceeding.

A fair and reasonable interpretation of this provision (see 22 NY Jur 2d, Contracts § 222; see also Farrell Lines v City of New York, 30 NY2d 76, 82 [1972]) bars tenant installations such as the satellite dishes at issue here, which clearly fall into the category of "other projections." Inasmuch as the boards to which the dishes were attached were themselves affixed to or secured by the windows, the projection of the dishes violates the lease provision cited in the petition. It is undisputed that tenant did not obtain the required written permission for the installation. Therefore, landlord's summary judgment motion should have been granted.

Pesce, P.J. (dissenting). I respectfully dissent. I agree with the majority that the tenant satellite dish installation at issue in the present summary proceeding is not within the ambit of Telecommunications Act of 1996 § 207 (Pub L 104-104, 110 US Stat 56) and its implementing regulations. However, I do not agree that the lease provision cited as the grounds for the petition herein may be read to bar the satellite dish installation at issue. While a satellite dish arguably falls under the heading of "other projections" which may not be "attached to the outside walls of the building" in accordance with the lease, the record indicates that the dishes at issue are not, as a matter of law, "attached to the outside walls of the building." They are affixed in various ways to boards, which in turn are affixed either within (by wedging) the window frame or to the windowsill inside the apartment. Such an installation method may well be an eyesore or even a danger, as landlord has argued, but the instant petition did not cite these grounds as its predicate, confining itself to the above-quoted lease provision.

Landlord neither showed on its own summary judgment motion,{**4 Misc 3d at 76} nor raised as an issue of fact on tenant's cross motion for summary judgment, that the manner of attachment of the dishes violates the lease provision cited in the predicate notice. Clauses similar to that relied upon by landlord are commonplace in residential leases (see Urban Horizons Tax Credit Fund v Zarick, 195 Misc 2d 779 [Civ Ct, Bronx County 2003]), and primarily address interests of structural integrity, i.e., preventing water entry through holes made to accommodate tenant fixtures (see id., and cases cited therein). Landlord raised no issue that tenant's method of placing the satellite dishes, which involves no "attachment" to the outside walls at all, ran afoul of the plain language of the lease clause. It is a fundamental principle of the law of contracts that words are to be given their ordinary meaning where, as here, there is no evidence that they are to be given another meaning (see 1 Dolan, Rasch's Landlord and TenantSummary Proceedings § 6:5 [Construction of Leases] [4th ed]).

The issues of tenant satellite dish installation raised by this proceeding are bound to recur with increasing frequency as this method of television reception becomes more popular. Eventually, either legislation addressing the situation of multiple dwelling residents, that balances the competing issues of residents' ability to select programming of their choice and owners' desire to maintain the appearance and safety of their buildings, will have to be enacted, or the technological state of the art will have to advance to the point that outside installations that may run afoul of building owners' interests become unnecessary. However, the more immediate solution to these issues lies in drafting lease terms that give clear notice to tenant of actions the landlord wishes to forbid, and in more attentive articulation of predicate violations should matters reach the unfortunate point of a summary proceeding. As matters stand, it is not the proper role of this court to remedy landlord's shortcomings in drafting the lease and for that matter the present petition by doing violence to the otherwise plain meaning of the lease provision at issue.

Golia and Rios, JJ., concur; Pesce, P.J., dissents in a separate memorandum.