West Broadway Glass Co. v Namaskaar of Soho, Inc.

[*1] West Broadway Glass Co. v Namaskaar of Soho, Inc. 2005 NY Slip Op 50686(U) Decided on May 10, 2005 Civil Court, New York County Mendez, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 10, 2005
Civil Court, New York County

West Broadway Glass Company, Petitioner-Landlord,

against

Namaskaar of Soho, Inc., 337A Broadway, Store New York, NY 10013, Respondent-Tenant(s), -and- XYZ Corp., Respondent Subtenant.



57378/05



Counsel for Petitioner-Landlord:

Belkin, Burden, Wenig & Goldman, LLP

By: Jeffrey L. Goldman, Esq.

Counsel for Respondents-Tenants:

Finkelstein Newman LLP

By: Andrew J. Wagner, Esq. and Robert Finkelstein, Esq.

Manuel J. Mendez, J.

Petitioner brings this summary non-payment commercial Landlord and Tenant action against respondents to collect $46, 737.41 plus rent accruing in future months beginning in the month of March 2005 at the rate of $12,667.00 per month. This matter was tried by the Court on April 1, April 12 and April 13, 2005. At the conclusion of the trial, counsel for the respondent requested the opportunity to submit legal memoranda and the Court ordered the parties to make [*2]simultaneous submissions on April 27, 2005.

After a careful review of the briefs submitted in support of the parties respective positions, the testimony elicited at trial, the documents admitted in evidence and the law as applicable to this case, this Court finds as follows:

FACTUAL BACKGROUND

Respondent NAMASKAAR of Soho, Inc. Is the tenant of the premises located at 337A West Broadway New York, NY 10013(hereinafter "the Premises"). Respondent entered into possession of the premises under a written assignment and assumption of lease agreement made in March 1999 between NIOTA Inc. as assignor and respondent as assignee. Under this agreement, respondent assumed a written rental agreement dated June 1, 1996 between NIOTA, Inc. As tenant and West Broadway Glass Company as landlord. The rental agreement was to commence on July 1, 1996 and to expire on the 30th day of September 2006. For the period commencing on October 1, 2004 and ending September 30, 2005 rent was to be paid in the amount of $152, 012.42 per year payable in equal monthly installments of $12,667.00 per month.[FN1]

Respondent operated a restaurant in the premises until November 14, 2004. Although he still had possession he did not pay the required rent for the months of December 2004, January and February 2005. Sometime in December 2004 or January 2005, respondent orally authorized Phillip Fahey, a purported assignee, to enter the premises to do some "painting work there." Unbeknownst to respondent, Mr. Fahey began performing renovation work without first obtaining the consent of the landlord. Petitioner learned of the work being performed on January 25, 2005 and following notice to respondent to cease and desist from unauthorized work, moved in Supreme Court under Index No. 600351/05 for a preliminary injunction "enjoining and restraining defendants, its agents, assigns and employees from commencing, continuing or conducting all structural and non-structural alterations, construction, improvement or any work whatsoever in the ground or second floor of the premises."[FN2]

The Order to Show Cause enjoining and restraining defendants, its agents, assigns and employees was signed by the Hon. Judith Gische on January 31, 2005 and scheduled oral arguments for February 10, 2005.[FN3] Petitioner served a three days rent demand on Respondent on February 8, 2005 and on February 16, 2005 filed this non-payment petition in Landlord and Tenant Court.

On March 3, 2005, while the preliminary injunction was still in effect, Mr. Thomas Eschmann, an employee of Manhattan Skyline Management Corp., the entity that manages the building owned by petitioner that contains the premises in question, visited the premises. At the [*3]time, Mr. Eschmann was accompanied by Mr. Robert Esnard, Sy Weintraub, Patrick Trenalag and Mike Mehmoddic, the superintendent from a Sullivan Street property also managed by Manhattan Skyline.

Upon entering the premises Mr. Eschmann observed two men on the second floor, one had a tape measure and was measuring a section of wall. There was Sheetrock, spackle, a spackle knife and building supplies on the premises. Mr Eschmann did not see the two men do any work, and he did not address them in any way. After observing this, Mr. Eschmann and his companions went outside and waited for Robert Esnard to arrive. When he arrived the group re-entered the premises and Mr. Eschmann observed the two men getting ready to leave. He also observed Mr. Robert Esnard confront them and say, "He was going to have them locked up if they didn't leave."[FN4] After the two men left Mr. Eschmann inspected the premises. "He felt the walls where there was some wet plaster; and looked at some BX cables that were hanging loosely in the wall, some electricity work that was partly being done."[FN5]

After the men that had been on the second floor departed and Mr. Eschmann

had inspected the premises, other individuals arrived to complain about the ouster of the two men from the premises. After showing these individuals the wet plaster, Mr. Eschmann proceeded to tell them that the locks were going to be changed. Following this, Mr. Eschmann wrote a note in 81/2" x 11" paper that stated: "Locks changed per court injunction (212) 977-4813 West Broadway Glass Company Manhattan Skyline."[FN6]

Mr. Eschmann conceded that the Order to Show Cause signed by the Hon. Judith Gische did not authorize the locks to be changed.[FN7]

Respondent was not given a copy of the new keys. Mike Mehmodic, the Superintendent from the Sullivan Street property was the only person known by Mr. Eschmann to possess a copy of the keys. In order for Respondent, or anyone on his behalf to gain access to the premises, he would have to make arrangements through his attorney and Mike Mehmodic, the super, would have to be available.[FN8]

The procedure in place for respondent to gain access to the premises after the locks were changed was a cumbersome one: first, respondent's attorney would contact the petitioner's attorney; petitioner's attorney would then contact Joe Jambore,; Joe would then contact Patrick Trenalag who manages the site, Patrick would then make arrangements for "Mike" the super to go over there and meet and let them in. Mr. Eschmann believes that's how it happened and how it continues to happen.[FN9] [*4]

Respondent has requested that access to the premises be given to the proposed assignee. He has also requested that he be given access to the premises. Access to the premises has been granted and has also been denied.[FN10]

PARTIES ARGUMENTS

Petitioner argues that since tenant has been given access the fact that he doesn't have keys to the premises is irrelevant. Respondent was not disseized, ejected or put out of the premises in a forcible manner nor kept out by force or fear of personal violence, therefore he was not wrongfully evicted.

Respondent argues that by changing the locks and refusing to provide new keys, petitioner has ousted and excluded him from possession, this constitutes an illegal lockout and petitioner may not collect rent from March 3, 2005 forward. Furthermore, as a result of this unlawful eviction, petitioner is liable to respondent pursuant to RPAPL§ 853.

LEGAL ANALYSIS

A landlord's changing of the locks and retaining the keys operates as an eviction precluding recovery for rent subsequently accrued (Lester v. Griffin, 57 Misc. 628, 108 NYS 580 [App. Term New York, 1908]). The act of the landlord entering the premises by changing the locks operates to deprive tenant of its use of the premises sufficient to terminate the lease (Constitutional Realty Corp., v. Puder, 54 AD2d 537, 387 NYS2d 1[1st Dept. 1976]). A key is a symbol of possession, just as the surrender of the key by the tenant is evidence of an intent on his part to surrender possession (American Tract Society v. Jones, 76 Misc. 236, 134 NYS 611 [App. Term New York, 1912]). Thus, when a landlord arbitrarily refuses to furnish the tenant with a key, even when tenant has offered to pay the cost thereof, "shows such a hostile attitude on the part of the landlord toward the tenant, such wilful disregard of the tenant's rights and such willful and unreasonable interference with the tenant's enjoyment of the leased premises as amounts in law to an eviction. Even possession by a subtenant of a key to the premises is not a possession by the tenant, essential to the full possession of the premises" (American Tract v. Jones, supra).

Petitioner's attorney has stipulated, on the record that petitioner changed the locks to the premises. Petitioner's witness, Thomas Eschmann, admitted that he changed the locks to the premises and retained the keys. Petitioner was not authorized by the Order to Show Cause signed by the Hon. Judith Gische on January 31, 2005 to perform this act. The Order simply enjoined respondent from performing work on the premises pending the hearing and determination of petitioner's application. Therefore, it is undisputed that petitioner changed the locks without authorization and did not furnish a copy of the keys to respondent. The fact that Mike Mehmodic, the superintendent of the Sullivan Street property, retained a key and was to provide access to the respondent when he requested it through his attorney does not in and of itself convey full possession of the premises to respondent.

"Changing locks on premises and preventing access by the tenant amounts to a wrongful eviction,"(3855 Broadway Laundromat, Inc., v. 600 West 161st Street Corp., 156 AD2d 202, 548 NYS2d 461 [1st Dept.1989]; Barash v. Pennsylvania Terminal Real Estate Corp., 27 NY2d 77, 308 [*5]NYS2d 649, 256 NE2d 707; Mitchell v. City of New York, 154 Misc 2d 222, 584 NYS2d 277). However, petitioner argues that he was justified in changing the locks due to the illegal nature of respondent's act in performing work on the premises contrary to the lease without the landlord's consent, and after he had been preliminarily enjoined from performing such work. This argument is not persuasive. Justice Gische did not issue an order authorizing the changing of the locks; furthermore, a landlord may not, on his own, change the locks and impede the tenant's access to and use of the premises even if the tenant is performing an act contrary to the lease (Wishod v. Kible, 115 AD2d 735, 496 NYS2d 544 [2nd Dept.1985]).

Finally, petitioner argues that in order for there to be an eviction, not only must respondent be denied a key, he must also be denied access. The credible testimony at trial from Mr. Saigal at page 18, lines 11-12 while being questioned by Mr. Goldman, petitioner's attorney wherein he responded as follows:

"Q - Were you ever denied access?

A- Yes."

show that the respondent was denied access.

The credible testimony at trial of Mr. Eschmann at page 24 Lines 5-23 while being questioned by Mr. Finkelstein, Respondent's attorney wherein he responded as follows: "Q - Okay, Mr. Goldman was calling somebody to arrange access, who would he call? Would he call you?

A - No.

Q - He would call the Super directly?

Q - Who was he to call?

A - I am sorry?

Q - Who was Mr. Goldman to call if _ _ _ _. A - Mr. Goldman, would probably either call Joe Jambore and Joe, in-house, comes up and he would tell Patrick, who manages the site for _ _ _ _ He makes arrangements for the super to go over there and meet and let them in.

I believe that's how it happened and that's the way it continues to happen."

And at page 21 Line 3 through 13, where Mr. Finkelstein elicited the following responses:

"Q - Okay, so no one could get in unless the landlord had somebody meet him there?

A - That's correct.

Q - If the landlord wants to go in , can't the landlord go in?

A - Yes.

Q - Any time they want

A - As long as Mike's available.

Q - Well, if Mike was available he would be _ _ _ _ does Mike work for the landlord?

A - Yes."

demonstrates that Respondent does not have unfettered access to the premises. He cannot simply show-up at the premises and be let in. The doors to the premises do not remain open during the day thereby facilitating respondent's access. In order for respondent to gain access he has to go through a cumbersome and lengthy process of contacting his attorney, who will then contact petitioner's attorney, who will in turn contact individuals in the property management company, these [*6]individuals will relay the request for access until it finally reaches Mike, the superintendent of another property. After having gone through all that, access will be provided only if Mike the superintendent is available. This elaborate procedure cannot be interpreted as giving respondent access sufficient to constitute possession.

In Cut-outs, Inc., v. Man Yun Real Estate Corp., 286 AD2d 258, 729 NYS2d 107 Appellate Div. 1st Dept. 2001, the Appellate Division, First Department reversed Supreme Court's finding for tenant. In reversing, the Appellate Court held that "a commercial landlord's failure to give tenant a new key following a change in the lock on entrance to the premises until tenant made the request for the new key two or four days after installation of the new lock, did not result in an eviction where tenant was not deprived of the use of its premises for any substantial period of time, because the door was unlocked each day by landlord's employees."

The facts in Cut-outs are entirely distinguishable from the facts of this case. In Cut-outs when tenant requested a key, one was given, here, Respondent still does not possess a key; in Cut-outs the interruption in the use of premises was of very short duration, here, Respondent has not had use of the premises since March 3, 2005, in Cut-outs the tenant had access to the premises because landlord's employees unlocked the door to the premises every day so that tenant had unfettered access, here, in order to gain access Respondent must utilize an elaborate, cumbersome and unpredictable procedure established by the landlord. If any of the parties involved in this procedure is unavailable, especially the last link in the chain, Mike, access is denied. Finally, in Cut-outs the landlord was authorized to change the locks, here landlord did not have such authorization.

An actual eviction occurs when the landlord wrongfully ousts the tenant from physical possession of the leased premises. When the tenant is deprived of the beneficial enjoyment or actual possession of the demised premises, which he is entitled to under the lease, an eviction has occurred (Barash v. Pennsylvania Terminal Real Estate Corp., 26 NY2d 77, 308 NYS2d 649, 256 NE2d 707). The facts lead to the inexorable conclusion that respondent has been deprived of the actual possession and the beneficial enjoyment of the demised premises to which he is entitled under the lease; therefore with respect to respondent, an eviction has occurred.

It is the law in New York, that a landlord may not attempt to evict a tenant without first bringing the tenant to court and obtaining a judgment of possession and a warrant of eviction (Scherer and Fisher, Residential Landlord - Tenant Law in New York p.7-6 [2005 ED] §7-2 ; Romanello v. Hirschfield, 63 NY2d 613, 479 NYS2d 519, 468 NE2d 701 (1984); Zappia v. Poliseno, NYLJ 5/15/02 22:5 (Dist. Ct. Nassau Co.). "Self-help" is a tort and entitles the party wrongfully removed to damages (Spodek v. Liberty Mutual Ins. Co., 155 AD2d 439, 547 NYS2d 100 (2d Dept 1989); under the Real Property Actions and Proceedings Law §853, a tenant who has been put out or kept out in a forcible or unlawful manner is entitled to recover treble damages (RPAPL §853; Sam & Mary Housing Corp., v. Jo/SAL Market Corp., 100 AD2d 901, 474 NYS2d 786 (2nd Dept. 1984), order Aff'd, 64 NY2d 1107, 490 NYS2d 185, 479 NE2d 821 (1985); Yates v. Kaplan, 75 Misc 2d 259, 347 NYS2d 543 (NY Civ. Ct. 1973).

CONCLUSION

Petitioner in changing the locks and denying respondent the beneficial enjoyment and actual possession of the premises has in fact evicted him. This eviction occurred without petitioner having obtained a judgment of possession and a warrant of eviction from a Court of Law. Petitioner has [*7]resorted to "self-help" in the eviction of respondent and respondent is therefore entitled to treble damages pursuant to RPAPL§ 853.

Accordingly, it is the judgment of this Court that this commercial summary proceeding wherein petitioner seeks non-payment of rent in the amount of $46, 737.41 plus rent accruing for the months of March and April is dismissed. Petitioner is not entitled to rent for months respondent has been without possession of the premises. Since petitioner engaged in "self-help" by changing the locks to the premises and in effect denying respondent access to the same, respondent is entitled to treble damages. The damages respondent is entitled to are to be litigated, in the pending Supreme Court Action between the parties under Index No. 600351/05, before the Honorable Justice Judith Gische.

This constitutes the decision and judgment of this Court.

Dated: May 10, 2005______________________

MANUEL J. MENDEZ

Judge, Civil Court Footnotes

Footnote 1: See petitioner's #1 in evidence lease, assignment. Parties stipulated to petitioner's prima facie case, ie.: lease, deed, and non-payment of rent. Petitioner stipulated to changing locks.

Footnote 2:See Order to Show Cause in defendant's moving papers, Exh. "F."

Footnote 3:Motion was decided on April 13, 2005 granting preliminary injunction and ordering a conference for May 12, 2005. The Order did not grant petitioner permission to change the locks.

Footnote 4:See Transcripts, Eschmann Testimony pp.2 - 10

Footnote 5:See Transcripts, Eschmann Testimony pp.2 - 10

Footnote 6:See Respondent's "A" in evidence, sign posted at premises when locks changed.

Footnote 7:See transcripts, Eschmann Testimony p. 15 Ln 23 - p.16 Ln2 & p. 18 Ln 23 - p. 19 Ln 1.

Footnote 8:See Transcript, Testimony Eschmann p. 20 Ln 2 - p. 21 Ln 13.

Footnote 9:See Transcript testimony Eschmann p. 24 Ln 5-23.

Footnote 10:See Transcript Saigal Testimony p. 18 ln 11-12