Feierstein v Moser

[*1] Feierstein v Moser 2005 NY Slip Op 51137(U) Decided on May 10, 2005 Supreme Court, New York County Solomon, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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
Supreme Court, New York County

Alan Feierstein, Plaintiff,

against

Elias Moser, Defendant.



103255/96

Jane S. Solomon, J.

Motion sequence nos. 004 and 005 are consolidated for disposition.

In motion sequence no. 004, defendant moves by order to show cause for a preliminary injunction tolling a Notice of Termination, dated January 10, 2005, pending determination of the underlying action by this court. At present, that notice is tolled and stayed by a temporary restraining order dated January 21, 2005.

In motion sequence no. 005, plaintiff moves, pursuant to CPLR 3025 (b), for leave to serve and file an amended complaint adding a cause of action for ejectment, and defendant cross-moves for an order dismissing the complaint, pursuant to CPLR 3211 (a) (1) and (5), and for summary judgment pursuant.

Tenant moved into his loft (Loft), the 3rd floor of 119 Mercer Street in Manhattan, in 1979, at which time the Loft consisted of "raw" space in a commercial building. Subsequently, the building became an Interim Multiple Dwelling under the jurisdiction of the New York City Loft Board (Loft Board), after which it was "legalized" as a residential multiple dwelling. A certificate of occupancy for the building was issued in January 2000, and on September 18, 2003, the Loft Board approved a building code compliance rent increase for the Loft and set the initial legal rent. Plaintiff then offered defendant a form rent stabilized lease, and the Loft, which is now a rent-stabilized unit, passed out of the jurisdiction of the Loft Board.

This action, which was commenced in 1996, arose from defendant's 1995 renovation of the bathroom in the Loft. Defendant avers that, prior to the renovation, the hot and cold water pipes in the bathroom ran directly over the floor and posed a danger to his then young children, and that the bathroom walls consisted of moldy, non-water-resistant sheetrock. The work that was done consisted, for the most part, of covering the walls with waterproof materials, erecting a platform and raising the tub, so that the water pipes, which defendant relocated, would run under the tub, rather than across the floor, and installing a second sink. Defendant, who is an architect, arranged for this work to be performed without obtaining plaintiff's permission, which was required by defendant's lease. Because only an owner can obtain a building permit, defendant did the work without one. Plaintiff learned of the unauthorized work and, in January 1996, had a violation placed on the work for failure to obtain a permit. On or about February 16, 1996, plaintiff commenced this action.

The complaint sought a declaration that defendant had violated his lease by undertaking the work in the bathroom without the landlord's permission and without the necessary permit, an injunction barring defendant from performing any further construction work, an order requiring him to restore the bathroom to its previous condition, and attorney's fees as provided for in the lease. In the course of the last 10 years, this action has made its way to Civil Court and to the [*2]Appellate Term, First Department, back to Supreme Court, and to the Appellate Division, First Department. It is now before this court in a factual and legal context that is different from that in which it was commenced, but with the complaint unchanged, and with defendant's counterclaim for attorney's fees having survived.

In April 1996, plaintiff had his architect file amended plans for the legalization of the lofts in the building with the New York City Department of Buildings. Those plans included the changes that defendant had made to the bathroom, providing, for example, for tiling around the base of the platform that defendant had constructed. Accordingly, the changes made by defendant are now a constituent part of the basis upon which plaintiff obtained the certificate of occupancy for the building, as well as the calculation of the initial legal rent. It is clear that defendant cannot undertake any construction work, let alone construction work affecting conditions upon which, in part, the certificate of occupancy rests, without a building permit from the Department of Buildings. It is equally clear that, because defendant does not own the Loft, he is no more able now than he was in 1995 to obtain a building permit. Moreover, defendant avers, and plaintiff does not dispute, that, prior to the work that defendant performed on the bathroom, the floor consisted of raw wood, the sheetrock was not water resistant and the ceiling and walls were crumbling, the sink was hung on a piece of plywood and not properly vented, and there was no ground fault interrupter; and that each of these conditions, if restored, would constitute a violation of the Building Code. Thus, plaintiff, too, would be unable to obtain a building permit authorizing the work which the complaint demands from defendant. Plainly, this court will not order defendant to take an action that he may not lawfully take. Accordingly, defendant's cross motion for summary judgment will be granted to the extent of dismissing plaintiff's third cause of action, which seeks an order requiring plaintiff to restore the bathroom to its earlier state.

Plaintiff has not moved for injunctive relief at any time in the 10 years that this action has been pending, and he does not contend that defendant is currently engaged in any work, or planning any work, the performance of which would violate the terms of defendant's current lease. Accordingly, plaintiff's second cause of action will be dismissed as moot.

Defendant acknowledges that he renovated the bathroom without plaintiff's consent, and it is indisputable that, absent such consent, the lease that was then in effect barred such work as defendant performed. However, defendant contends that plaintiff has waived that breach by incorporating the work that defendant performed in plaintiff's plans for legalizing the Loft as residential space. Plaintiff disputes this contention on two grounds: (1) that he commenced this action; and (2) that he explicitly reserved his rights in the legalization proceedings before the Loft Board. The April 23, 1996 letter of plaintiff's architect to the Loft Board, submitted a little more than two months after plaintiff commenced this action, states that: [r]egardless of the contents of our current submission [adopting, and building on, defendant's work], the owner continues to contend that the most recent changes to the third floor bathroom was illegal work performed by tenant without the consent of the landlord. My presentation of these conditions on the landlord's plans do not in any way waive his legal rights and remedies related to the damage to his property caused by the tenant's illegal work.

Feierstein Aff., Exh. A, at Bates 305. Plaintiff thus elected to adopt defendant's work, and he thereby waived defendant's breach of the lease, except as to a claim that the work that tenant had performed had damaged plaintiff's property. See Tibbetts Contr. Corp. v O & E Contracting Co., 15 NY2d 324 (1965); Scavenger, Inc. v GT Interactive Software, Inc., 273 AD2d 60 (1st Dept 2000). However, the complaint does not allege that plaintiff's property was damaged by defendant's work, and indeed, plaintiff acknowledged at his deposition that he does not know whether defendant's work did not, in fact, save plaintiff money. See Boop Affirm., Exh. E, at 102-104. To be sure, even absent actual damages, a breach of contract generally entitles plaintiff to nominal damages. Kronos, Inc. v AVX Corp., 81 NY2d 90 (1993); Rodgers v Lenox Hill Hosp., 239 AD2d 140 (1st Dept 1997). Here, however, plaintiff waived the breach, except as to [*3]a claim for actual damages. Plaintiff, therefore, is entitled neither to nominal damages nor to the declaration that he seeks.

Because plaintiff's first three causes of action are being dismissed, and because plaintiff, therefore, is not the prevailing party, plaintiff's fourth cause of action, for attorney's fees, will also be dismissed.

Plaintiff served a Notice to Cure, dated October 8, 2004, on defendant, ordering him to "restore the bathroom to its original condition prior to [defendant's] unauthorized alteration thereof." Plaintiff then ignored defendant's counsel's request that plaintiff specify what he wanted defendant to do, and served the termination notice that is the subject of defendant's order to show cause. While a motion for summary judgment allows the court to search the record, a court may not grant judgment on a claim or defense that is unrelated to the matter that is the subject matter of the motion. Baseball Office of Commissioner v Marsh & McLennan, Inc., 295 AD2d 73 (1st Dept 2002). Here, the Notice to Cure demands from defendant exactly what plaintiff's third cause of action seeks to have this court order defendant to do. The third cause of action is being dismissed in response to defendant's motion for summary judgment dismissing the entire complaint. Accordingly, for the same reasons that this court is dismissing the third cause of action, it will also declare the Notice to Cure, and the subsequent Notice of Termination, which is based upon defendant's failure to comply with the Notice to Cure, void.

Leave to amend a pleading should freely be given. CPLR 3025 (b); McCaskey Davies & Assocs., Inc. v New York City Health & Hosp. Corp., 59 NY2d 755 (1983). However, it may be denied where the proposed amendment is clearly lacking in merit. Sharon Ava & Co. v Olympic Tower Assocs., 259 AD2d 315 (1st Dept 1999). Plaintiff's motion to amend is denied because defendant's tenancy has not been terminated by the Notice of Termination, and because no cause of action for ejectment lies where, as here, the tenant occupies the subject premises under a valid lease.

Finally, defendant's motion for a preliminary injunction is denied as moot. Accordingly, it hereby is

ADJUDGED and DECLARED that, while defendant materially breached his lease, plaintiff has waived that breach; and it is further

ADJUDGED and DECLARED that the Notice to Cure dated October 8, 2004, and the Notice of Termination dated January 10, 2005, both of which were served by plaintiff upon defendant, are null and void; and it is further

ORDERED that plaintiff's motion to amend the complaint is denied; and it is further

ORDERED that defendant's motion for a preliminary injunction is denied as moot; and it is further

ORDERED that defendant's cross motion for summary judgment is granted, and the complaint is hereby severed and dismissed; and it is further

ORDERED that the rest of this action will continue, and counsel shall appear in Part 55 for a pre-trial conference on the remaining counter-claims on June 13, 2005 at 12 noon.

Dated: May 10, 2005ENTER:

_____________________

J.S.C.