Vidas Cousins Realty Corp. v PB & J Assoc., Inc.

[*1] Vidas Cousins Realty Corp. v PB & J Assoc., Inc. 2010 NY Slip Op 51226(U) [28 Misc 3d 1208(A)] Decided on July 14, 2010 Nassau Dist Ct Fairgrieve, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 14, 2010
Nassau Dist Ct

Vidas Cousins Realty Corporation, Petitioner(s)

against

PB & J Associates, Inc., Respondent(s)



SP 005616/07



REPRESENTATION:

Law Offices Edwards & Edwards, Esqs., Attorneys for Petitioner, 336 South Ocean Avenue, Freeport, New York 11520, 516-379-1323; Abrams, Fensterman, Fensterman, Greenberg, Formato & Einiger, LLP, Attorneys for Respondent, 1111 Marcus Avenue, Suite 107, Lake Success, New York 11042, 516-328-2300.

Scott Fairgrieve, J.

ORDER

On March 24, 2009 this Court issued an order finding that respondent PB & J was constructively evicted from the premises located at 103 Woodcleft Avenue, Freeport, New York 11520 due to petitioner's failure to make structural repairs. This finding was based upon the petitioner's neglect and failure to properly repair the roof of the leased premises despite notice of same by the respondent.

Said order is recalled and the Court issues the following order in its place and stead:

This Court heard testimony for more than thirty five sessions; visited the premises; examined the pertinent testimony and exhibits in evidence; carefully reviewed the law; had a full opportunity to observe the demeanor of all the witnesses; and listened to the closing arguments of each party.

The Court finds the following on the issue of liability only:

The evidence indicates that the landlord breached its contractual responsibility to make structural repairs. This finding is based upon the petitioner's neglect and failure to properly repair and/or replace the roof of the leased premises despite notice of same by the respondent. Said breach resulted in water leakage and structural damage to several areas of the premises which forced the tenant to stop operating its business on or about November 28, 2007. Furthermore, there was a continuing pattern of unwillingness on the part of the petitioner to timely make structural repairs; the landlord did not commence roof repairs until [*2]early 2008 and they were completed on March 28, 2008. This breach resulted in the impairment of the tenant's possession and enjoyment of the premises, and interfered with its normal business activities.

A landlord's breach of a covenant to repair the subject premises is not a defense to a non-payment proceeding. When rent is due, the tenant must either pay or surrender possession (Douglas v. Chesebrough Building Corporation, 56 AD 403 [1st Dept 1900]). To recover damages resulting from a landlord's breach, the tenant may counterclaim in a non-payment action (Thomson-Houston Electric Company of New York v. Durant Land Improvement Company, 144 NY 34 [1894]; 74 NY Jur2d, Landlord and Tenant §387).

The Court finds that the respondent has established its first counterclaim that the petitioner breached its responsibility to make structural repairs.

There is no merit to the respondent's second and third counterclaims which sought relief based upon actual and constructive eviction. There was no evidence that the petitioner ever actually evicted the respondent. Further, while the respondent stopped operating the business on or about November 28, 2007, the testimony indicates that the respondent did not totally abandon the premises at that time, an essential element of constructive eviction (Pier 59 Studios L. P. v. Chelsea Piers L.P., 27 AD3d 217 [1st Dept 2006]; 2 Dolan, Rasch's Landlord and Tenant- Summary Proceedings §28:26 and 28:30 at 343-345 [4th ed]).

A review of the testimony shows that PB & J exercised definitive domain, possession and control of the premises after it stopped operating its business on or about November 28, 2007 and after the roof repairs were completed on March 28, 2008.

Based upon the testimony of James K. Brown on January 14, 2009 (transcripts, page 16), he and his wife Margaret Brown, owners of PB & J, entered the premises in January 2008:

QDuring the month of January, did you receive notice that there was a water leak in the inside of the premises at 103 Woodcleft Avenue?

ANo, we were not.

QDid you ever come to learn that there was a water leak inside of the premises at 103 Woodcleft?

AOn Sunday me and Peggy went to the restaurant.

THE COURT:Of what?

THE WITNESS:January of '07.

QI'm talking about '08?

AI'm sorry, '08. I apologize. January of '08, my wife and I went down to the restaurant and noticed condensation on the window, opened the door and found that [*3]everything was all wet and trashed.

QAnd what did you do when you found out?

AWe started cleaning up and it was a mess. We found the broken pipe was actually in the ceiling in the kitchen.

Margaret Brown testified on January 6, 2009 (transcripts, page 35) that she and James K. Brown entered the premises again in June 2008:

QWere you present at the premises on June 7th or 8th, 2008 during the Nautical Mile Festival?

AYes.

QWho was there?

AMyself and my husband.

QWhat were you doing?

AJust sitting there just to make sure nobody came on the property, that nobody was docking their boats behind the property because there are so many people on the street at that point. We just wanted to insure that nobody was trespassing onto the property.

QDid you operate the bar at any time?

AI'm sorry?

QWere you in the bar area of the premises?

AYeah.

QWas anybody there besides you and your husband?

AI think my parents stopped in and my sister stopped in.

QAnybody else?

AOther people would come by. We set ourselves up out towards the sidewalk so that people wouldn't come into the premises. It was closed.

QOther than you and your husband, was there anybody else present at any point on June 7, 2008 in the bar area of the premises?

ANot to my recollection, no.

James K. Brown also testified on January 20, 2009 (transcripts, page 48) that PB & J intended to operate the business at the premises until the spring of 2008, after the roof repairs were completed on March 28, 2008:

QIn November of 2007, was it the hope and intention of PB & J Associates to hopefully reopen the restaurant?

AYes.

Mr. MCCORMICK:Objection

THE COURT:I'll allow that.

QCould you give me the approximate date, month when PB & J made the [*4]determination amongst three owners that the business would no longer be at the premises?

AI would say it was the spring of '08 we made that decision.

QSo prior to that time, it was your hope?

ATo get back in, yes.

It was not until December 2009, that the respondent surrendered its keys to the premises. A key is a symbol of possession and control. When a tenant upon relinquishing possession returns the keys to the leased premises to his landlord, this will, as a general rule, constitute an act evidencing an intent to offer a surrender of the lease (Id. § 26:16 at 291 [4th Ed]).

By exercising domain, possession and control of the premises after the roof repairs were completed on March 28, 2008, and by not surrendering the keys until December 2009 the respondent waived its right to claim that it was constructively evicted.

This matter is set down for a hearing on damages for August 2, 2010.

So Ordered:

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated:July 14, 2010