Opinion
SC-0522-15
11-25-2015
Cassandra A. Partyka and Justin J. Jordan, Plaintiffs, v. Neil H. Lebowitz, Defendant.
Frederick A. Partyka, Esq., attorney for Plaintiffs, 5 Hibbard Street, Amsterdam, New York 12010-4712 Neil H. Lebowitz, Esq., pro se, 288 Glen Street, Glens Falls, New York 12801
Frederick A. Partyka, Esq., attorney for Plaintiffs, 5 Hibbard Street, Amsterdam, New York 12010-4712 Neil H. Lebowitz, Esq., pro se, 288 Glen Street, Glens Falls, New York 12801 Gary C. Hobbs, J.
The Plaintiffs commenced this action seeking the return of the balance of their security deposit. The defendant asserts that the plaintiffs wrongfully removed certain fixtures from the leased premises, which under the terms of the lease agreement had become property of the landlord and that the plaintiffs caused damage to the premises.
The matter was tried before this court. During the trial, this court heard the testimony of the respective parties, reviewed the exhibits admitted into evidence and was able to evaluate the demeanor and credibility of each of the witnesses. The following constitutes the Findings of Fact and Conclusions of Law derived from the credible testimony and evidence in this case.
Findings of Fact
On August 21, 2013, the Plaintiffs and the Defendant entered into a written lease agreement whereby the plaintiffs rented the premises described as 8B Grant Avenue, Glens Falls, New York from the defendant [Pl.Ex.1]. The term of the lease agreement was for 21 months and 3 days, commencing on September 28, 2013 and ending on June 30, 2015 [Pl.Ex.1, pg.1, Section 2]. At the outset of the lease, the plaintiffs paid the defendant a security deposit in the amount of $2000.00 [Def.Ex.K]. At the conclusion of the lease agreement, the security deposit, together with accrued interest, totaled $2014.02 [Def.Ex.K]. The terms of the parties' written lease agreement were negotiated by Plaintiff Cassandra Partyka and the Defendant, both of whom are licensed and practicing attorneys.
Prior to the commencement of the trial, the parties stipulated that the Defendant was entitled to deduct the amount of $94.90 from the security deposit for an unpaid water and sewer bill, leaving a security deposit balance of $1919.12.
The plaintiffs took possession of the leased premises in September of 2013. Sometime after taking possession of the property, plaintiff Justin Jordan asked the defendant if he could make certain changes to the property. Mr. Jordan asked the defendant for permission to install a television in the front room over the fireplace, to replace the fan & light combination in the diningroom, and to install a microwave range in the kitchen. The defendant orally consented to these alterations to the leased premises.
Section 9 of the lease agreement provides that all "alterations, installations, and improvements shall become the property of Landlord when completed and paid for, and shall be surrendered as part of the Leased Premises at the end of the term." [Pl.Ex.1, pg.2, Section 9].
In early October of 2013, the defendant saw plaintiff Cassandra Partyka at the parking area of the leased premises with a lighting fixture for the diningroom. At that time, the defendant reminded Ms. Partyka that, pursuant to the lease agreement, any tenants' improvements must stay in the property. Ms. Partyka asked about the washer and dryer to which the defendant responded that those items were the plaintiffs' personal property. Ms. Partyka asked the defendant if she could take the lighting fixture at the conclusion of the lease term, and the defendant responded, "I will think about it."
Plaintiff Cassandra Partyka asserts that the defendant consented to have any lighting fixtures removed at the end of the lease term, but admits that there was no lease addendum prepared to this effect and Ms. Partyka never sent an email or letter to the defendant confirming this alleged oral agreement.
In October of 2013, the Defendant entered the leased premise with contractors, Christopher Brown and Edward Watson. At that time, the Defendant saw that the Plaintiffs had changed the lighting fixture in the dining room and in the entrance room. He voiced no objections to the plaintiffs about these changes at that time.
In May of 2015, the defendant made an inspection of the leased property with his architect. At that time, the defendant found that the plaintiffs had made certain changes to the leased premises, without his consent. These changes included the installation of different light switches and switch plates in the foyer, front room, entrance area, diningroom, kitchen, hallway, downstairs bathroom and guest bedroom. The defendant also found that plumbing fixtures had been changed in the bathrooms. The defendant apparently voiced no objection to the changes at that time.
In late June or early July of 2015, at the end of the plaintiffs' lease term, the defendant conducted an inspection of the premises with plaintiff Cassandra Partyka. The defendant saw that the plaintiffs had made further alterations to the leased property without his consent, including the removal of lighting fixtures from the front room, livingroom, diningroom, kitchen, the bedroom at the top of the stairs, and in the guest bedroom. [Def.Ex.C,E,F,G,H and I]. The plaintiffs had disconnected and removed the lighting fixtures from these rooms, which left open holes and hanging electrical wires. [Def.Ex.C,E,F,G,H and I]. The defendant found that the master bedroom closet light had been replaced with a different lighting fixture. The plaintiffs had, without defendant's consent, installed television cables in the kitchen and guest bedroom by drilling holes in the walls [Def.Ex.A,B and D]. The defendant also found that a strike on the screen door was missing. During the inspection of the leased premise, the defendant voiced no objections to plaintiff Cassandra Partyka. After the inspection, Ms. Partyka asked the defendant about her security deposit, and the defendant stated words to the effect that he would not hold up the return of the security deposit. The defendant also indicated that he wanted to reinspect the premises before refunding the plaintiffs' security.
The plaintiffs assert that the defendant's original lighting fixtures were left in the attic.
The plaintiffs assert that the defendant's original lighting fixtures were left in the attic.
On July 22, 2015, the defendant refunded $843.70 of the security deposit to the plaintiffs, and deducted the amount of $1075.42 from the security deposit for alleged damages caused by the plaintiff to the premises [Def.Ex.K]. The defendant produced estimates from Hill Electric Supply Co., Inc., Precision Construction Company, Lowes Home Centers, LLC., and Diane Bruno for the damages and repairs to the leased premises. [Def.Ex.K,L,M and N].
Conclusions of Law
It is well settled that, absent fraud, duress or mutual mistake, the parties to a contract are bound by the express terms and conditions of their agreement. See: Law v Edgecliff Realty Co., 133 NYS2d 418, 419 (Sup. Ct., Westchester County, 1954); Schonberger v Culbertson, 231 AD 257 (1st Dept. 1931) (Generally, rights of parties to contract must be determined by its terms); La Vere v R. M. Burritt Motors, Inc., 112 Misc 2d 225, 226 (City Ct., City of Oswego, 1981), citing, Simpson on Contracts, 2nd Edition, pages 1—7, 86—88 (absent fraud, the parties to a written agreement are bound by the written terms of their agreement and the Court will not rewrite a contract freely entered into by the two parties—even if the contract may be grossly favorable or unfavorable to either party); 17 C.J.S. Contracts § 2 (a party who has voluntarily entered into a contract is bound by its terms, even though the contract may prove to be unwise or disadvantageous to him or her); Brandywine Pavers, LLC v Bombard, 108 AD3d 1209, 1210 (4th Dept. 2013), quoting, Da Silva v. Musso, 53 NY2d 543, 550, 444 N.Y.S.2d 50, 428 N.E.2d 382("Under long accepted principles, one who signs a document is, absent fraud or other wrongful act of the other contracting party, bound by its contents.").
In the present case, Section 9 of the lease agreement specifically states that all "alterations, installations, and improvements shall become the property of Landlord when completed and paid for, and shall be surrendered as part of the Leased Premises at the end of the term." [Pl.Ex.1, pg.2, Section 9] (emphasis added). The Plaintiffs presented no evidence of fraud, duress or mutual mistake in the making of the parties' written contract. Thus, the plaintiffs are bound by their written agreement that the lighting fixtures, once installed, became property of the defendant and could not be removed without the express consent of the defendant.
Even if the parties' contract did not contain the above stated provision, the lighting fixtures installed by the plaintiffs would generally be deemed to be fixtures under New York common law. A fixture is personalty which is: (1) actually annexed to real property or something appurtenant thereto, (2) applied to the use or purpose to which that part of the realty with which it is connected is appropriated, and (3) intended by the parties as a permanent accession to the freehold. See: Mastrangelo v Manning, 17 AD3d 326, 327 (2d Dept 2005); Matter of Metromedia v. Tax Commn. of City of NY, 60 NY2d 85, 90, 468 N.Y.S.2d 457, 455 N.E.2d 1252; Matter of Long Is. Light. Co. v. Assessor for the Town of Brookhaven, 202 AD2d 32, 41, 616 N.Y.S.2d 375; South Seas Yacht Club v. Board of Assessors and Bd. of Assessment Review of County of Nassau, 136 AD2d 537, 538—539, 523 N.Y.S.2d 157 (2d Dept. 1998)). "The permanency of the attachment does not depend so much upon the degree of physical force with which the thing is attached as upon the motive and intention of the party in attaching it." McRea v. Central Natl. Bank of Troy, 66 NY 489, 495 (1876). See also: South Seas Yacht Club v. Board of Assessors and Bd. of Assessment Review of County of Nassau, 136 AD2d 537, 538—539, 523 N.Y.S.2d 157 (2d Dept. 1998). "The intent which is regarded as controlling is not the initial intention at the time the [item] is acquired, nor the secret or subjective intention of the party making the attachment, but rather the intention which the law will deduce from all the circumstances." Marine Midland Trust Co. of Binghamton v. Ahern, 16 N.Y.S.2d 656, 659 (Sup. Ct., Broome County 1939).
In the present case, the totality of circumstances, including the parties' written lease agreement, demonstrate that the parties intended the lighting fixtures to become and remain fixtures of the leased premises.
Here, the plaintiffs' assert that the defendant orally amended the lease to allow the plaintiffs to remove and keep any lighting fixtures installed by them, despite the provision of the lease agreement which provides, in pertinent part, that the "[t]enant must obtain Landlord's prior written consent to . . . make any other alterations."
As a general rule, where a written contract has a provision which explicitly prohibits oral modification, such a clause is afforded great deference. General Obligations Law § 15—301 [1]; Healy v. Williams, 30 AD3d 466, 467 (2d Dept. 2006); Calica v. Reisman, Perez & Reisman, 296 AD2d 367, 368 (2d Dept.2002). Thus, the provisions of a contract requiring a subsequent writing for modification are enforced, even when there is evidence of some subsequent oral modifications. John Street Leasehold LLC v. FDIC, 196 F.3d 379, 382 (2d Cir. 1999)(New York law enforces such requirements and does not permit oral modification when the original written agreement provides that modifications must be in writing and signed); Indus. Window Corp. v. Fed. Ins. Co., 609 F. Supp. 2d 329, 339 (S.D.NY 2009)(Under New York law, however, where a contract requires any amendments to be evidenced by a writing signed by the parties, oral modifications to the contract are prohibited); Rose v. Spa Realty Associates, 42 NY2d 338, 343 (1977)(If the only proof of an alleged agreement to deviate from a written contract is the oral exchanges between the parties, the writing controls).
Notwithstanding provisions requiring modifications to be in writing, New York courts have held that the contract can still be found to have been orally modified "if the evidence, taken as a whole, shows that the modification was authentic, or if the [allegedly orally modified] agreement was otherwise ratified by the parties' conduct." Janover v. Bernan Foods, Inc., 901 F.Supp. 695, 701 (S.D.N.Y.1995); Randolph Equities, LLC v Carbon Capital, Inc., 05 CIV 10889 PAC, 2007 WL 914234, at *3 [S.D.NY 2007]. Thus, "the general course of conduct between the parties may modify or eliminate contract provisions requiring written authorization or notice of claims." Barsotti's, Inc. v. Consolidated Edison Co., 254 AD2d 211, 212, 680 N.Y.S.2d 88 (1st Dept. 1998); Indus. Window Corp. v Fed. Ins. Co., 609 F Supp 2d 329, 342 (SDNY 2009).
The plaintiffs are correct that, despite the provision of the lease agreement requiring written consent from the landlord to make alterations to the leased premises, the parties' lease could have been modified by a subsequent oral agreement between the plaintiffs and the defendant. However, the plaintiffs have failed to meet their burden of proving the oral modification.
Generally, a party can overcome a no-oral-modification clause by showing either partial performance or equitable estoppel. United States v. Schwimmer, 968 F.2d 1570, 1575 (2d Cir.1992). To rely on the partial performance exception, "that partial performance must be unequivocally referable' to the new contract." Merrill Lynch Interfunding v. Argenti, 155 F.3d 113, 122 (2d Cir.1998), quoting, Rose v. Spa Realty Associates, 42 NY2d 338, 397 N.Y.S.2d 922, 366 N.E.2d 1279, 1283 (1977). In other words, "the actions alone must be unintelligible or at least extraordinary, explainable only with reference to the oral agreement." Anostario v. Vicinanzo, 59 NY2d 662, 463 N.Y.S.2d 409, 450 N.E.2d 215, 216 (1983) (internal quotation and citation omitted). Equitable estoppel applies only "if one party to the written contract has induced another's significant and substantial reliance upon an oral modification,' and if the conduct relied upon is not otherwise ... compatible with the agreement as written." EMI Music Mktg. v. Avatar Records, Inc., 317 F.Supp.2d 412, 421 (S.D.N.Y.2004), quoting, Rose, 397 N.Y.S.2d 922, 366 N.E.2d at 1283 (1977).
While the plaintiffs assert that they had an oral modification with the defendant, this Court finds the defendant's testimony that he did not orally consent to allow the plaintiffs to remove any lighting fixtures from the leased premises as being more credible as the defendant's testimony is confirmed by other evidence.
First, plaintiff Cassandra Partyka testified that, at the conclusion of the lease term, she made an offer to the defendant to allow the defendant to keep the microwave and blinds that the plaintiffs had installed in the leased premises and, in exchange, Ms. Partyka asked to remove and keep her installed lighting fixtures. If, as the plaintiffs now assert, the defendant had orally consented to allow the plaintiffs to remove and keep any lighting fixtures installed by them, then there would be no reason for Ms. Partyka to offer to leave the microwave and blinds in exchange for removing and keeping the lighting fixtures. Second, the defendant credibly testified that he became aware, in May of 2015, that the Plaintiffs had replaced many of the defendant's lighting fixtures [except for the diningroom and front room fixtures], when the defendant inspected the apartment with his architect to make plans for a bathroom renovation. Certainly, the defendant could not have agreed to allow the plaintiffs to remove and keep any and all lighting fixtures, when he was unaware that many of the lighting fixtures had been replaced by the plaintiffs. Third, plaintiff Justin Jordan testified, in detail, regarding the specifics of his conversation with the defendant concerning Mr. Jordan's request to install a new lighting fixture in the diningroom. During his testimony, Mr. Jordan stated that, when he asked the defendant for permission to install the lighting fixture, the defendant merely responded "yes" to his request. Mr. Jordan's testimony failed to recount any of the defendant's alleged words consenting to the removal of any and all lighting fixtures that the plaintiffs were planning to install. Had Mr. Jordan and defendant reached an oral agreement allowing the plaintiffs to remove any lighting fixtures that they had installed, then Mr. Jordan certainly would have testified to the actual statements made by the defendant consenting to the removal of any lighting fixtures. Fourth, the plaintiffs' assertion that the defendant orally consented to the plaintiffs' removal of any lighting fixtures installed by them at the conclusion of the lease term is contrary to the parties' written lease agreement [Pl.Ex.1, pg.2, section 9]. If there had been such an oral modification, then plaintiff Cassandra Partyka, who is a practicing attorney, could easily have memorialized this oral modification in a confirming letter or email to the defendant. According to the parties' testimony, they had exchanged a number of email letters concerning the leased premises during the lease term.
On cross examination, plaintiff Justin Jordan did testify that it was his "understanding" that he and the defendant had reached an agreement allowing the plaintiffs to remove any of the lighting fixtures that they had installed. However, during his direct examination by the defendant, while recounting the actual conversation that he had with the defendant, plaintiff Jordan failed to recount any actual statements made by the defendant that could have caused plaintiff Jordan to have such an understanding.
With respect to the defendant's claim of an off-set against the plaintiffs' security deposit, the defendant deducted the sums of $94.90 for an unpaid water and sewer bill; $573.08 for new lighting fixtures to replace the removed fixtures; $40.22 for new electrical switches and wall plates; $430.00 for the installation of the lighting fixtures, electrical switches and wall plates, removal of the television cable and wall repair; $30.00 for the cleaning of the electric stove, and $2.12 for the door latch for a total deduction from the security deposit of $1170.32 [Def.Ex.K]. The balance of $843.70 from the security deposit was returned to the plaintiffs [Def.Ex.K].
The plaintiffs admitted to owing the water and sewer bill at the outset of the trial.
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With respect to the defendant's set-off for cleaning of the stove/oven, there was insufficient evidence of the damages caused by the plaintiffs, the reason for a professional cleaning of the stove/oven or that the condition of the stove/oven constituted more than ordinary or reasonable wear and tear. As a result, the off-set for $30.00 for the stove cleaning is denied.
With respect to the wrongful removal of the lighting fixtures, the plaintiffs assert that the defendant's original lighting fixtures were left behind and there was no evidence presented that the defendant's original lighting fixtures were damaged or inoperable. The plaintiffs assert that the defendant should simply reinstall his original lighting fixtures and that the off-set for new fixtures, if granted, would unjustly enrich the defendant.
The plaintiffs' assertion, however, ignores the fact that the new lighting fixtures that the plaintiffs' installed became the property of the defendant. Granting the defendant the cost of merely reinstalling the old fixtures would deprive the defendant of the benefit of his bargain under the lease agreement.
Generally, the measure of damages for wrongful removal or destruction of fixtures from a leasehold premise is the value of the fixtures in their condition at the time of the removal or destruction or the replacement cost. 59 NY Jur. 2d Fixtures § 48; Sparks v Stich, 135 AD2d 989, 991 (3d Dept 1987) (holding that were the plaintiffs breached the contract of sale by removing a television antenna from the roof, which was deemed to be a fixture, the defendants were entitled to reimbursement for the cost of replacement of the antenna); Blancob Const. Corp. v 246 Beaumont Equity, Inc., 23 AD2d 413, 416©17 (1st Dept. 1965) (the defendant having wrongfully removed the fixture must bear the expense of such repairs as are necessary to put the building in as good a condition as it would have been in if the fixture had not been removed).
Here, the defendant presented estimates and/or invoices from Hill Electric Supply Co., Inc.; Precision Construction; and Lowe's Home Centers, LLC. [Def.Ex.K,L,M and N]. The defendant's testimony, together with these estimates and invoices, are facially sufficient to sustain the defendant's off-sets claimed for the remaining damages caused by the plaintiffs.
Based on all of the foregoing, this Court grants judgment in favor of the plaintiffs in the amount of $30.00 for reimbursement of the electric stove cleaning charge, together with taxable costs and disbursements in the amount of $26.00, for a total judgment of $56.00, and the plaintiffs shall execution thereon. The balance of the Plaintiffs' claims in their small claims complaint are dismissed, with prejudice. Dated: November 25, 2015 ______________________________
Hon. Gary C. Hobbs, Judge
Glens Falls City Court
ENTER.