Canterbury 16 Assoc. v Nadler
Annotate this CaseDecided on April 13, 2011
District Court of Nassau County, First District
Canterbury 16 Associates, Petitioner(s)
against
Estelle Nadler, ANDREW NADLER and "JANE DOE," Respondent(s)
LT-000184-11
Schneider Mitola LLP, Attorneys for Petitioner, 666 Old Country Road, Garden City, New York 11520, 516-393-5555; Nassau/Suffolk Law Services Committee, Inc., Attorneys for Respondents, 1 Helen Keller Way, 5th Floor, Hempstead, New York 11550, 516-292-8100.
Scott Fairgrieve, J.
The following named papers numbered 1 to 3
submitted on this Motion
on April 1, 2011
papers numbered
Notice of Motion and Supporting Documents1Order to Show Cause and Supporting Documents3
Opposition to Motion2
Reply Papers to Motion
On January 10, 2011, Petitioner Canterbury 16 Associates instituted a holdover summary proceeding seeking possession of the premises, issuance of a warrant to remove Respondents, Estelle Nadler and Andrew Nadler, from possession and an award of legal fees and disbursements in the amount of at least $1,950.00.
Petitioner served a ten day notice to cure, dated December 13, 2010, stating in part that Respondents are in breach and violation of the lease: Tenant is further directed to correct substantial violations of her tenancy pursuant [*2]to the Emergency Tenants Protection Act (ETPA) § 2504.2(b), to wit:
The Premises is unsanitary, unhealthy and unclean with boxes, bags, papers and debris piled throughout the entire apartment.
Unless all boxes, bags, papers and debris are cleared and the Premises restored to sanitary, healthy and clean condition on or before December 31, 2010, the Landlord will seek to vacate the Lease and termiante the tenancy by summary proceedings.
There is roach and vermin infestation throughout the entire apartment.
Unless all roaches and vermin are eradicated and the Premises restored to sanitary, healthy and clean condition on or before December 31, 2010, the Landlord will seek to vacate the Lease and terminate the tenancy by summary proceedings.
Unless you cure the foregoing on or before December 31, 2010, the Landlord will seek to terminate your tenancy by summary proceedings under the Real Property Actions and Proceedings Law to remove you and all persons claiming under you from said Premises.
On February 4, 2011, Respondents signed a stipulation consenting to adjourn the case to March 4, 2011, and agreed to permit inspection of the premises on or after February 23, 2011 by telephone appointment.
On February 18, 2011, Petitioner filed a motion for leave to conduct discovery seeking leave to serve a notice of discovery and inspection upon Respondents and to take the deposition upon oral questions of Respondents. An order to show cause was filed with the court on March 25, 2011 and signed March 28, 2011, requesting an order directing Respondents to permit Petitioner, or its agents, access to the Premises for purposes of inspection thereof, and further directing that Respondents grant access to a duly licensed exterminator for purposes of inspection and fumigation as may be deemed necessary.
Respondents filed an affirmation in opposition on April 1, 2011. Respondents allege that there is no basis in law or fact for this Court to take "the unusual step of issuing the injunction requested by the Petitioner."
The Court grants the order to show cause to permit Petitioner to inspect the premises and to allow extermination if necessary for several reasons. Respondents signed a stipulation agreeing to the inspection. No valid reason has been presented by Respondents not to enforce the stipulation.
A landlord owes a duty to protect all tenants from foreseeable harm, and may take minimal precautions to accomplish this task. The foregoing includes allowing a landlord access [*3]to effectuate repairs. See Landlord and Tenant Practice in New York, Daniel Finkelstein and Lucas A. Ferrara, Section 10:86, wherein the following is stated:
Although the landlord is not an "insurer" of a tenant's safety, the courts have imposed upon residential landlords the duty to take minimal precautions to protect residential tenants from foreseeable harm. This duty includes the landlord's obligations to protect a tenant against dangerous or defective conditions both at the inception and during the course of the tenancy.
A tenant must allow the landlord access to the residence to effectuate repairs that protect against dangerous and defective conditions.
The foregoing justifies inspection of the premises by Petitioner.
Additionally, Practice Commentaries to CPLR 3120:11 states:
"If anything connected with a parcel of real property is involved in the litigation, so that any kind of inspection or testing becomes relevant under the broad criteria of CPLR 3101(a), the party in control of the land may be required to permit entry onto it by the adverse party or someone in his behalf for any of the purposes specified in CPLR 3120(1)(ii)."
In Iskowitz v. Forkosh Const. Co., Inc., 269 AD2d 131, 703 NYS2d 20 (1st Dept 2000), the court cited CPLR 3120(a)(1)(ii) and stated that a party may serve another party with notice to permit entry upon designated land or other property in possession for the purpose of inspection, and that such motions are routinely granted when a central issue is the condition of the real property:
Such motions are routinely granted when a central issue in the case is the condition of the real property under inspection (e.g., Haddad v. Salzman, 173 AD2d 522 [inspection required where plaintiffs claimed defendants' alterations of their home violated zoning laws]; County of Chenango Indus. Dev. Agency v. Lockwood Greene Engrs., 111 AD2d 508, 510 [in suit alleging negligent design and construction of building, defendants could inspect building]).
The property (cooperative) is the central issue of this case, and the sanitary conditions of the property alleged make inspection relevant under the broad criteria of CPLR 3101(a).
Conclusion
The inspection of the premises shall take place on April 27, 2011, at 3:00 p.m. and all parties, including attorneys shall be present during the inspection.
So Ordered:
[*4]/s/ Hon. Scott Fairgrieve
DISTRICT COURT JUDGE
Dated:April 13, 2011
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