54-56 Mgt. Corp. v Birmingham
Annotate this CaseDecided on August 25, 2006
Civil Court of the City of New York, New York County
54-56 Management Corp., Petitioner,
against
Susan Birmingham, Respondent.
L&T 063158/06
Attorney for PetitionerAttorney for Respondent
BELKIN BURDEN WENIG & GOLDMAN, LLPJEFFREY S. WEEN & ASSOCIATES
BY: DAVID M. SKALLER, Esq.BY: JEFFREY S. WEEN, Esq.
270 Madison Avenue, 5th Floor150 Broadway, #1616
New York, New York 10016New York, New York 10038
212-867-4466212-964-1822
Pam B. Jackman-Brown, J.
Respondent moves for partial summary judgment as follows: to enter judgment on the fourth affirmative defense and the first counterclaim that the business conducted on the first floor is illegal; for a judgment on the second affirmative defense for breach of warranty of habitability; for an order directing Petitioner to cure the violation on the first floor.
Respondent moved into the subject unregulated apartment pursuant to a written two-year lease commencing April 2003.The subject apartment is situated over a restaurant and bar. Sometime in June 2003, the rent was reduced based on Respondent's complaints for noise. The tenancy was renewed for an additional two-years and a lease was executed on December 13, 2005.Respondent stopped payment of rent as of January 2006. Petitioner then commenced this instant proceeding.Respondent [*2]interposed defenses and counterclaims and thereafter filed this motion for partial summary judgment. Petitioner opposed.
In a motion for summary judgment, the burden of proof is on the movant to establish its claim or defense sufficiently to warrant the court as a matter of law to direct judgment in its favor. CPLR 3212(b); SRM Card Shop, Inc. v 1740 Broadway Assocs., LP, 2 AD3d 136 (1st Dept [2003]).In like manner, the party opposing must show sufficient evidentiary proof that there is disputed material issue of fact sufficient to require a trial. Id at 141; LF One Co v Bobrowski, NYLJ, Dec 28, 1990, at 21, col 3 (App Term, 1st Dept). In addition, the opposing party is entitled to every favorable inference. Fleher v Cartwright, NYJL, Jul 9, 2001 at 20 col 3, (App Term, 1st Dept).Respondent's motion for partial summary judgment is predicated on the violation issued against the business for the illegal use of its license. The documentary proof shows that a violation was issued and the business paid a fine in October 2005. There is no showing that the violation was corrected.
It should first be noted that Housing Court has no jurisdiction over a commercial license and the use of commercial premises. That being said, the issue is whether the use of the premises by another tenant interferes with Respondent's quiet enjoyment in her premises. A landlord has a non-delegable duty to make the premises habitable. Park West Management Corp v Mitchell, 47 NY2d 316 (1979). The violation against the business transfers to the landlord in the context of its duty to Respondent's warranty of habitable environment in the residential apartment. See Goldman v O'Brien, NYLJ, Aug 14, 2000, at 28, col 2 (App Term, 1st Dept).Respondent argues that the cabaret show operated by the commercial tenant increased the off-hours noise which created a dangerous condition to her life, health and safety. In that stead, her daily life is harmed emotionally and physically and she is unable to enjoy the subject premises.Though Respondent has shown violations for illegal operation by the commercial tenant and also showed findings of excessive noise level emanating the business activities, these factors alone do not automatically prove that Petitioner has breached the warranty of habitability by its failure to keep the premises free of conditions that are dangerous to life, health or safety pursuant to RPL §235-b(1).The warranty protects the uses reasonably intended by the parties when they entered into the agreement for this unregulated apartment located directly above the commercial tenant. See RPL §235-b(1).In this case, given that
Respondent knew the business is a restaurant and bar, chose to sign a lease for the subject premises which is located directly above the business, there is an issue of fact of whether the uses that were reasonably expected at the commencement of the tenancy changed during the tenancy thereby diminishing the warranty received at the beginning of the landlord and tenant's relationship. See Lease dated December 13, 2005, attached as Petitioner's Exhibit No.E ¶42.
Respondent did not dispute that she visited the premises and was aware of the business prior to signing the lease. She also did not dispute that she received a rent [*3]reduction for the noise sometime in June 2003.However, she argues that the operating purpose of the business has changed and the noise level has increased. Petitioner states that Respondent and acquiesced to the environment when she knowingly executed both leases.But this issue is a matter best left for trial since there is no showing what was the noise level before and how it has subsequently changed. Therefore, the evidential proof raise disputed issues of the material fact as to what was Respondent's knowledge at the commencement of the landlord and tenant's relationship and how the environment has changed to constitute a breach of warranty of habitability.
Therefore, Respondent has failed to show sufficient evidence proof as a matter of law to grant partial summary judgment in her favor. A judgment directing Petitioner to cure the violation is denied and reserved for trial.
Based on the foregoing, the motion is denied in its entirety.
This case is restored to the calendar on October 4, 2006, at 9:30 a.m. in Part G, Room 823.
This constitutes the Decision and Order of the Court.
Dated: New York, New York_______________________________
August 25, 2006Pam Jackman-Brown, J.H.C.
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