Nunz Equities E. LLC v Mangan
Annotate this CaseDecided on July 27, 2007
Civil Court of the City of New York, New York County
Nunz Equities East LLC, Petitioner-Landlord,
against
Linda Mangan, Respondent-Tenant, -and- "John Doe" and "Jane Doe," Respondents-Occupants.
056855/2007
Kucker & Bruh, LLP
Attorneys for Petitioner
747 Third Avenue
New York, NY 10017
By:Edward P. Alper, Esq.
Ms. Linda Mangan
Respondent Pro Se
304 East 89th Street
Apartment 4B
New York, NY 10128
David B. Cohen, J.
BACKGROUND
In this holdover proceeding, petitioner seeks to recover possession of a rent-stabilized apartment claiming that respondent violated the lease by making alterations without petitioner's consent.
QUESTIONS PRESENTED
1. Whether respondent, who received a court-ordered TRO three days after receiving a 10-day notice to cure from petitioner, was afforded 10 days as required by the Rent Stabilization Code.
2. Whether respondent substantially violated her lease when, without petitioner's consent, she replaced the stove, refrigerator, overhead kitchen cabinets, sink base cabinet, and drain pipe.
FINDINGS OF FACT
At trial, the following witnesses testified for petitioner: Robert Baranoff, property manager; and Joseph Annunziata, petitioner's agent. The following witnesses testified for respondent: John Mangan, father of respondent; and respondent Linda Mangan. [*2]
Respondent resides at Apartment 4B, 304 East 89th Street, New York, New York (the "apartment"), a rent-stabilized unit. Petitioner is the landlord of the building. Respondent entered into possession in 1978, under a written rental agreement (the "lease").[FN1] The current renewal lease is for a term expiring on March 31, 2008 and indicates that respondent is the tenant of record and petitioner is the owner. Article 5 of the lease reads as follows:
Tenant shall make no changes, alterations or improvements of any kind in or to the demised premises without landlord's prior written consent. Tenant shall not mark, paint, wallpaper, affix any flooring to, drill into, or in any way deface any part of the demised premises, nor shall the tenant deface the inside or the outside of the building. . . . All alterations, additions or improvements upon demised premises made by either party pursuant to the provisions of this lease, including all panelling, decorations, partitions, railings, and the like shall become the property of Landlord, and shall remain upon and be surrendered with said premises as a part thereof, at the end of the term hereof, unless Landlord elects by written notice to Tenant given not less than fifteen (15) days prior to the expiration or other termination of the term to have them removed, in which event the same shall be removed by Tenant forthwith at Tenant's expense.
Respondent testified that the prior landlord, around 1980, removed the kitchen cabinets that had been there and, around 1983, gave her oral permission to replace the stove, the refrigerator, kitchen cabinets and the sink base cabinet at her own expense.[FN2] She had replacements installed during that time.[FN3]
In December 2006, respondent contacted petitioner about having the apartment painted, to which petitioner replied that the painter would come on December 20, 2006. Respondent, without asking petitioner, decided to replace, all with new corresponding items, the following: (1) the old stove and old refrigerator; (2) the old overhead kitchen cabinets; (3) the old sink base cabinet; and (4) the old drain pipe.
On December 21, 2006, while respondent was away, the painter, with permission of both respondent and petitioner, entered the apartment. The painter called petitioner's agent to report that the old cabinets had been removed and the old appliances had been moved to the middle of the kitchen, whereupon petitioner's agent arrived at the apartment and, unbeknownst to respondent, took photographs. Respondent returned, and in finding that the painter did not complete the job, contacted petitioner.
Meanwhile, respondent's work was completed by December 27, 2006.[FN4] On December 27, 2006, petitioner sent respondent a notice to cure, giving her until January 20, 2007, to cure the removal of the old kitchen appliances and cabinets. On December 29, 2006, petitioner obtained a [*3]temporary restraining order ("TRO") from the New York State Supreme Court, which respondent received service of on December 30, ordering respondent to stop all alterations work.[FN5] Respondent did not cure the alleged violations by January 20, 2007, and so petitioner, on January 22, 2007, sent respondent a notice of termination stating that, due to the alterations, the lease would terminate on February 9, 2007. Respondent did not vacate by that date, and on February 12, 2007, petitioner commenced this holdover proceeding. Respondent currently remains in possession of the apartment.[FN6]
CONCLUSIONS OF LAW
A. Respondent's 10-Day Opportunity to Cure
Rent Stabilization Code (9 NYCRR) 2524.3 reads in pertinent part as follows: [A]n action or proceeding to recover possession of any housing accommodation may only be commenced after service of the notice required by section 2524.2 of this Part, upon one or more of the following grounds, wherein wrongful acts of the tenant are established as follows: (a) The tenant is violating a substantial obligation of his or her tenancy other than the obligation to surrender possession of such housing accommodation, and has failed to cure such violation after written notice by the owner that the violations cease within 10 days . . . (Rent Stabilization Code [9 NYCRR] 2524.3).
The petitioner must establish that: (1) the tenant is violating a "substantial obligation of his or her tenancy," and (2) the tenant has "failed to cure such violation after written notice by the owner that the violation cease within 10 days" (id.). The 10-day cure period cannot be abbreviated (see ATM One, LLC v Landaverde, 2 NY3d 472, 478 [2004] [emphasizing the "regulatory purpose to provide tenants a 10-day opportunity to cure"]).
Here, respondent was served with a 10-day notice to cure, dated December 27, 2006. Three days later, on December 30, 2006, she received a TRO enjoining her "from performing, or causing and/or allowing to be performed, any alterations, construction, and/or demolition work in the premises, and from committing further waste therein." In other words, respondent was told by petitioner to put all of the removed cabinets, appliances, and plumbing back the way they had been, only to be told by the Court, three days later, at petitioner's urging, that she was enjoined from taking such action.
A reasonable layperson confronted with the instant TRO would read it to mean that all work at the apartment must cease. When confronted with a landlord's notice to cure and a contrary court order, a prudent individual would abide by the court order. Here, respondent was told to cure by the landlord and told not to cure by the Court. Petitioner's TRO cut respondent's cure period to three days, less than what was required under the Rent Stabilization Code. Therefore, this court finds that [*4]respondent was not given a 10-day opportunity to cure the alleged lease violations, and, thus, petitioner has not satisfied the requirements of Rent Stabilization Code (9 NYCRR) 2524.3 (a) and this proceeding must be dismissed.
B. Alterations to the Apartment
Petitioner asserts that respondent substantially violated her lease when she replaced the stove, refrigerator, kitchen cabinets and sink cabinet, and drain pipe.[FN7] In the landlord-tenant context, "waste" is "such a change as to affect a vital and substantial portion of the premises; as would change its characteristic appearance; the fundamental purpose of the erection; or the uses contemplated, or a change of such a nature as would affect the very realty itself, extraordinary in scope and effect, or unusual in expenditure" (Rumiche Corp. v Eisenreich, 40 NY2d 174, 179 [1976] [internal quotation marks and citation omitted]). While an insubstantial violation of a lease provision does not warrant forfeiture, a substantial violation does (e.g. 7 W. Foods, Inc. v Forty-Seventh Fifth Co., 109 AD2d 658, 659 [1985]). The tenant has committed a substantial violation of the "no alterations" clause when the alteration either: (1) materially changes the nature and character of the leased premises, or (2) causes lasting or permanent injury to the leased premises (Solow v Lubliner, NYLJ, June 6, 1990, at 21, col 2 [App Term, 1st Dept]). The landlord bears the burden to prove that the alterations constitute a substantial violation (see Rumiche Corp. v Eisenreich, 40 NY2d at 180).
i. The Kitchen Appliances
The replacement of non-defective but old kitchen appliances with new ones does not constitute a significant violation of a "no alterations" clause (Ram I, L.L.C. v Stuart, 248 AD2d 255, 256 [1st Dept 1998] [replacement of a 27-year-old stove was not a significant violation of the lease]; see also Lansis v Meklinsky, 10 AD2d 649 [2d Dept 1960]; Parker v Johnson, 26 Misc 2d 31 [Bronx City Ct 1960]). Here, the old stove and old refrigerator had been in the kitchen for over 20 years, so the tenant's replacing of them with newer ones did not constitute a substantial violation of the lease.
ii. The Drain Pipe
Generally, drain pipes are considered to be separate from sinks (see e.g. Wasserman v NRG Realty Corp., 118 AD2d 495 [1st Dept 1986]), moreover, pipes are not appliances (Random House Dictionary 102 [2d ed 1987]). The tenant may make alterations to items in her apartment without the landlord's consent when such items are in a defective state and where the landlord did not respond to the tenant's "repeated complaints and demands to have the items fixed" (Mengoni v Passy, 254 AD2d 203 [1st Dept 1998]). In the present case, where there is no the evidence that the drain pipe actually exhibited a defect, and no evidence that respondent made "repeated complaints and demands" to petitioner to fix the pipe, the replacement of the drain pipe constituted a substantial [*5]violation of the "no alterations" clause of the parties' lease.
iii. The Kitchen Cabinets
The court must determine whether the alterations of the overhead kitchen cabinets and sink base cabinet constituted a substantial violation by either: (1) materially changing the nature and character of the leased premises, or (2) causing lasting or permanent injury to the premises. In the leading case of Freehold Invs. v Richstone (34 NY2d 612 [1974]), a tenant "removed, and replaced with substitutes, a series of wall cabinets in the kitchen which were so physically annexed and affixed as to have long been part and parcel of the realty[, installed] metallic wall-covering material in the living room and bedroom, [and installed] extensive and substantially imbedded ceiling and wall reconstructions and lighting arrangements."[FN8] The Court of Appeals held that the evidence "persuasively" demonstrated that "the alterations were sufficiently substantial to constitute a significant injury to the reversion" (id.). In concluding that replacement of the cabinets had caused "lasting or permanent injury to the premises," the Court of Appeals' found that the "kitchen cabinets which were so physically annexed and affixed as to have long been accessory to and part and parcel of the realty," and that the cabinets and other alterations "could not be removed without injury to the freehold" (Freehold Invs. v Richstone, 34 NY2d at 612). In the present case, after having lived in the apartment for roughly five years without overhead kitchen cabinets, respondent had her father make and install the cabinets with the prior landlord's permission, which distinguishes this case factually from Freehold in that, here, the cabinets had not "long been accessory to and part and parcel of" the kitchen. Also, petitioner presented no evidence to even suggest that the nature of the cabinet affixation to the walls, or their removal and replacement, did, would, or could cause any injury to the premises.[FN9] Furthermore, there was no evidence indicating that the affixation of the new sink base cabinet caused permanent injury. Thus, the removal and replacement of kitchen cabinets did not cause lasting or permanent injury to the premises.
In Britton v Yazicioglu (189 AD2d 734 [1st Dept 1993]), the tenant replaced an old refrigerator with a new one and substituted wooden kitchen cabinets for metal ones. The Appellate Division, First Department, held that the replacement of non-defective "cabinets and refrigerator"[FN10] constituted a substantial violation of the "no alterations" clause (id.).[FN11] Regarding materially [*6]changing the nature and character of the apartment, Britton provides support for the conclusion that replacement of new cabinets made from significantly different material constitutes a substantial violation (see e.g. Britton, 189 AD2d at 734 ["replacement of wooden cabinets for metal ones for aesthetic reasons"] [Kupferman, J., dissenting]; Britton v Yazicioglu, NYLJ, Feb. 7, 1995, at 25, col 2). In the present case, however, overhead wooden cabinets were replaced with wooden ones. Also, a photograph of the finished kitchen indicates that with respect to size, physical characteristics, and color, the new kitchen cabinets do not alter the nature and character of the kitchen. Moreover, no evidence was presented as to the composition of the original sink cabinet and how it was affixed to the wall, nor as to how the removal and replacement of the sink cabinet materially changed the nature of the kitchen. In conclusion, the removal of kitchen cabinets, not permanently affixed to the premises, was not a substantial violation of the "no alterations" clause of petitioner's lease.
CONCLUSION
Because respondent was not given a 10-day opportunity to cure the alterations, petitioner has not satisfied a condition precedent to bring this proceeding under Rent Stabilization Code (9 NYCRR) 2524.3 (a) and, in any event, only the change of the drain pipe represented a substantial violation of the lease's "no alterations" clause.[FN12]
Accordingly, the petition is dismissed. As to the drain pipe only, the dismissal is without prejudice.
The clerk is directed to mail a copy of this decision to all parties.
This constitutes the decision and order of the court.
Date:July 27, 2007
New York, NY
________________________________
DAVID B. COHEN, J.H.C.
TO:
[*7]
Kucker & Bruh, LLP
Attorneys for Petitioner
747 Third Avenue
New York, NY 10017
By:Edward P. Alper, Esq.
Ms. Linda Mangan
Respondent Pro Se
304 East 89th Street
Apartment 4B
New York, NY 10128
Footnotes
Footnote 1:978, the landlord was 304 East 89th Street Limited (the "prior landlord"). Petitioner acquired rights in the premises in 1998 via a deed to the property.
Footnote 2:According to respondent, the policy of the prior landlord's superintendent was to permit tenants to do work to improve the apartments, at no cost to the landlord. There was, however, no written evidence indicating that such an agreement was made between respondent and petitioner.
Footnote 3:Respondent's father testified that, in 1985, he built and installed three pine kitchen cabinets in the presence of the prior landlord. Thus, it is evident that the prior landlord consented to these alterations made in the 1980s.
Footnote 4:Respondent testified that she believed that the old kitchen appliances and overhead kitchen cabinets were discarded but that she kept the old drain pipe and old sink base cabinet.
Footnote 5:The TRO ordered respondent "enjoined from performing, or causing and/or allowing to be performed, any alterations, construction, and/or demolition work in the premises, and from committing further waste therein."
Footnote 6:Although the petitioner names "John Doe" and "Jane Doe" as respondent-occupants, there was no evidence indicating that the apartment was currently in possession of anyone other than respondent.
Footnote 7:Since the lease stated that any alterations became property of the landlord, and since there was no evidence of the prior landlord's written consent to respondent become the owner of the alterations made in the 1980s, respondent does not have an ownership interest in the stove, refrigerator, and pine kitchen cabinets. Thus, there is no issue here as to whether respondent owns the altered property; petitioner owns it by virtue of the lease.
Footnote 8:In Freehold, the tenant had removed "old painted cabinets in the kitchen" and replaced them with "new oak veneer cabinets," in addition to the aforementioned alterations (Freehold Invs. v Richstone, 69 Misc 2d 1010, 1011 [Civ Ct, NY County 1972], revd 72 Misc 2d 624 [App Term 1973], revd 42 AD2d 696 [1st Dept 1973], revd 34 NY2d 612 [1974]). The lower court found that a significant change in appearance had occurred (Freehold, 69 Misc 2d at 1011).
Footnote 9:Indeed, photographs taken after removal of the old cabinets and prior to their replacement do not show any actual damage to the walls where the original kitchen cabinets had been.
Footnote 10:Although the language in Britton referred to non-defective "cabinets and refrigerator," the replacement of the refrigerator alone would not have constituted a substantial violation, in accordance with the subsequent Appellate Division decision of Ram I (248 AD2d at 256), which, in the context of the kitchen appliances, is controlling.
Footnote 11:In a subsequent proceeding between the Britton parties concerning the court-ordered cure period, the Appellate Term stated: "Manifestly, the Appellate Division's order did not contemplate a forfeiture of a long-term tenancy in this proceeding based upon, inter alia, the improper replacement of metal kitchen cabinets with wooden ones" (Britton v Yazicioglu, NYLJ, Feb. 7, 1995, at 25, col 2 [App Term, 1st Dept]).
Footnote 12:Had petitioner been successful in satisfying its burden under Rent Stabilization Code [9 NYCRR] 2524.3 (a), respondent would still have been entitled to cure the substantial violations. When a holdover proceeding is based upon a claim that the tenant has breached a provision of the lease, "the court shall grant a ten day stay of issuance of the warrant, during which time the respondent may correct such breach" (RPAPL 754 [4]). Here, the only substantial violation is the drain pipe, but since respondent kept the old drain pipe, she would need only to have it reinstalled within 10 days.
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