Lamberta v Sheffield

[*1] Lamberta v Sheffield 2009 NY Slip Op 51543(U) [24 Misc 3d 1221(A)] Decided on July 2, 2009 Suffolk Dist Ct, Third District Hackeling, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 2, 2009
Suffolk Dist Ct, Third District

Gail Lamberta, Petitioner

against

Christie Sheffield, Respondent



HULT 357-09



LoTurco & Martin

Bradford J. Martin, Esq.

Attorney for Petitioner

434 New York Avenue

Huntington, New York 11743

Christie Sheffield

Pro-Se Respondent

C. Stephen Hackeling, J.

Gail Lamberta, the above captioned landlord seeks to remove her tenant, Christie Sheffield, from occupancy of the premises located at 27 E. 14th Street, Huntington Station, New York, pursuant to a holdover petition dated June 18, 2009. The petition alleges that the landlord terminated the tenant's lease pursuant to its provisions via the service of a 5 day "notice to cure" dated April 18, 2009 and a "3 day notice of termination" dated May 26, 2009. The notice to cure alleges three lease violations concerning first, the occupancy of the premises by an unauthorized individual; second, the unauthorized installation of a washing machine and dryer; and third, the failure to comply with the landlord's rules. The tenant controverts these defaults asserting that her mother stayed with her for less than a month and vacated prior to the notice of termination; the washer/dryer units are portable, and that no "house rules" ever existed.

Undisputed Facts

The subject lease is the standard two page Blumberg T186 utilized for a 2-5 family dwelling. Paragraph 1 of said lease allows "only the person signing this lease and the spouse and children of that party to use the apartment". Paragraph 7 of the lease states that the "tenant must obtain the landlord's consent prior to alterations and must not change the electrical, plumbing or ventilation systems in the apartment". Paragraph 20 of the lease states that the tenant must " comply with the landlord rules". [*2]

The portable washing machine is not hooked up to the plumbing system and is filled with water out of the sink faucet. The portable dryer is electric powered and exhausts into the interior of the apartment. No written rules were ever promulgated.

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Discussion

Mother's Occupancy

The Court will summarily address the mother's alleged occupancy lease default without resort to deciding whether or not she had a permanent occupancy. Sec. 235 (f) of the New York Real Property Law makes it "unlawful for a landlord to restrict occupancy of a residential premises, by express lease terms or otherwise, to a tenant or tenants or to such tenants and immediate family. Any such restriction in a lease or rental agreement entered into or renewed before or after the effective date of this section shall be unenforceable as against public policy". Premised thereon, the tenant's mother is entitled to occupy the subject premises with her daughter. See, 61 Jane St. Assoc. v. Krolll, 102 AD2d 751 (N.Y.A.D.1st Dep't. 1984).

Rules Violation

The landlord's alleged lease default for failure to follow the landlord's rules will also be expeditiously decided. Clause No.20 requires the landlord's notice of rules to be " posted or given to the tenant". This implies that the rules must be in written form. In this instance, the alleged rule of "no washing machine or dryer" was not in the lease and the rule was orally created and orally notified after the lease was signed. An oral rule is not authorized by this lease. Even if it were, every lease implies good faith and fair dealings between the contracting parties. Simon v. Etger, 213 NY 589 (NY 1915). Grounds for a lease termination can not be capriciously or arbitrarily asserted. See, 57 E. 54 Realty Corp. v. Gay Ninties Realty Corp.,71 Misc 2d 353; (App. Term 1st Dep't.1972). Any lease default provision premised upon rules unilaterally created by the landlord after creation of a lease and without resort to objective criteria and an independent rule creation mechanism is arbitrarily suspect and probably in violation of the "unconscionability" provisions of New York Real Property Law Sec. 235 (c). See also, A & B Cabrini Co. v. Neuman, 237 NYS2d 970 (NYC Civ. Ct. 1963) which held post lease creation of a movable washing machine rule prohibition is an improper restriction on tenant's use.

Alteration/Plumbing

In this proceeding, the landlord does not rely upon an express "no washing machine/dryer" clause. Instead the alleged default is pinned to clause #

7 which contains standard "no alterations or changes to the plumbing, ventilating, air conditioning, electric or heating systems" language.

To enforce a lease forfeiture provision, defaults must be clear and material. City of New [*3]York v. Skyway-Dickman , Inc., 22 AD2d 506 (N.Y.A.D.1st Dep't. 1965). Case law provides that an express "no washing machine" clause in a lease is material enough to warrant lease termination enforcement and eviction. See, Starret City, Inc. v. Granthan, 2 Misc 3d 132(A) (App. Term 2nd Dep't. 2004), River Road Assoc. v. Orenstein, N.Y.L.J. 11-21-90 P. 27 col.1 (App. Term 9th & 10th Dists. 1990). The use of a portable washing machine can constitutea violation of a substantial prohibition and be cause for lease termination if expressly stated in the lease. See, Crystal Apartments Group v. Cook, 147 Misc 2d 676 (NY Civ. Ct. 1990). See also, Fairchild Investors Inc. v. Cohen, 43 Misc 2d 39 (NY Civ. Ct. 1964) holding that a portable washer is a substantial violation if prohibited in a lease unless waived via landlord inaction.

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However, in the absence of an express written lease prohibition, the use of a portable washing machine has been held not to constitute a substantial violation of the lease. Avos Realty Corp. v. Hixon, 70 Misc 2d 806 (App. Term 1st Dep't. 1972). The landlord's utilization of an alternative default via the generic "alteration prohibition" clause is an exercise in bootstrap logic. In this instance, the portable washer/dryer do not constitute an alteration; nor do they change the plumbing or electrical systems. A such, they are not a lease violation constituting grounds for a default termination.

The landlord lastly argues that the dryer violates NY State Fire Code statute G2439.1 (614.1) as it exhausts into the room it is in rather than outside. Even if true, this would constitute a default only under clause 14 of the lease which was not included in the landlord's notice to cure. Additionally, Sec. 614.1 applies only to gasoline fueled dryers, not electric powered dryers as in the instant case.

Accordingly, the landlord's petition is dismissed.

Dated:___________________________________________________

J.D.C.

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