Opinion
No. CV–006480–16.
07-20-2017
2306–2326 ARTHUR AVE., LLC, Plaintiff, v. Qazim DODA, Defendant.
Peter B. Ackerman, Esq., for Plaintiff. Qazim Doda, Pro Se.
Peter B. Ackerman, Esq., for Plaintiff.
Qazim Doda, Pro Se.
ARMANDO MONTANO, J.
The plaintiff, 2306–2326 Arthur Ave. LLC, commenced this action against the defendant, QAZIM DODA, on or about June 29, 2016, seeking payment in the amount of $5,057.15 for an alleged breach of a commercial lease agreement, inclusive of $1,685 for reasonable attorney's fees, interest, costs and disbursements.
This court conducted a bench trial on June 27, 2017. The plaintiff was represented by Peter B Ackerman, Esq., and the defendant represented himself pro se.
The plaintiff called as its only witness at the trial Thomas Fitzgibbons, who in his direct testimony, testified that he was employed by the Lordae, LLC, a property management company engaged by the plaintiff. Mr. Fitzgibbons testified that he held the title of operations manager and that some of his duties required him to take care of all lease imports into a computer system that tracked the leases and the payments, handle all evictions and day-to-day operations of tenant calls.
Mr. Fitzgibbons introduced into evidence without objection from the defendant a lease dated February 8, 2011, for office No. 202, in the building located at 2306 Arthur Avenue, Bronx, New York. (Plaintiff's Exhibit "1"). The term of the lease was 22–months as the lease commenced February 1, 2011 and ended on December 31, 2012. According to Mr. Fitzgibbons and as corroborated by the lease, (Exhibit "1") the defendant was to receive free rent for the month of February 2011. Over the defendant's objection this court allowed into evidence, as a business record, a Payment and Charge History marked as Plaintiff's "2" in evidence. The payment and charge history established that the defendant tendered $2,100 on or about February 15, 2011, $700 was paid for rent for the month of March 2011, and $1,400 constituted a rental security deposit of 2–month's rent. Mr. Fitzgibbons furthermore testified that subsequently the defendant was provided an additional rent credit of $700 as payment of the March 2011 rent was waived by the plaintiff.
Although the plaintiff is also seeking payment of reasonable legal fees, other than the payment and charge history (Plaintiff's Exhibit "2") which listed the various legal fee charges totaling the amount of $1,807.15, Mr. Fitzgibbons did not himself testify as to a specific amount requested in legal fees.
On cross-examination, Mr. Fitzgibbons essentially admitted that despite that his duties required him to handle day-to-day operations of tenant calls, he never visited the premises leased by the defendant during the period of time of the latter's occupancy as most of his work is done within his administrative office. Nor did Mr. Fitzgibbons have any recollection of ever having spoken to or receiving any complaints from the defendant, QAZIM DODA. Mr. Fitzgibbons furthermore testified on cross-examination that work orders would only be authorized when responsibility under a lease required plaintiff to address tenants' complaints and that work orders, if issued, would then be sent out to plaintiff's Maintenance Department.
The defendant called as a witness, ADRIAN GRAJCEVCI, who essentially testified on direct examination to the subject premises having water leaks attributable to a roofing problem prior to its rental by the defendant. Mr. Grajcevci testified that he belonged to an organization that held weekly meetings on Sundays at the subject premises, both before and after defendant leased the premises. In particular, Mr. Grajcevci described personally observing ceiling panels coming down, water accumulating on top of a television and tabletop which on several occasions prevented his organization from holding its meetings. Mr. Grajcevci furthermore testified that he himself called the management office at least 3 to 4 times. Mr. Grajcevci furthermore testified to having replaced ceiling panels on several occasions, fixing the ceiling 2 or 3 times, painting the interior walls but never attempted to fix the roof.
Mr. Grajcevci also testified to having taken 6–photographs depicting the water leaks within the subject premises which were introduced into evidence without objection by the plaintiff and marked as Defendant's Exhibit "A". The 6–photographs (Exhibit "A") corroborate the water damages sustained within the subject premises during the period of defendant's occupancy.
Although on cross-examination Mr. Grajcevci testified he was familiar with the problems that existed in the subject premises prior to the defendant taking possession and that he told this to the defendant, there was no testimony as to when he actually informed the defendant of the water leaks emanating from the roof. Therefore it was not established that Mr. Grajcevci informed the defendant of the water leaks prior to the execution of the lease.
The defendant, QAZIM DODA, testified on his own behalf that at the time that he executed the lease agreement dated February 8, 2011, the plaintiff was represented by Christopher Santomero, who is identified on the lease agreement as being a member of the limited liability corporation. According to the defendant, Mr. Santomero informed him at the time of the lease signing that "we will fix it" and that the defendant agreed to paint the office and that if there was "... any leak or any plumbing issues, [the defendant] would not be able to [fix-it] ..."
Defendant furthermore testified that he was periodically calling the plaintiff at least once a week and begging that someone be sent to fix the leaking issue and the bathroom. Defendant furthermore stated that one time, in June 2011, an individual named Eric, identifying himself as a handyman for the plaintiff, had been sent to inspect the roof and after doing so informed him that a company would have to repair the roof.
Attributable to losing business, the defendant testified that he decided to vacate the premises and returned the key back to the plaintiff on or before July 1, 2011. Defendant, without objection, introduced into evidence as Exhibit "C" an incomplete Notice of Petition & Petition for Non–Payment bearing Index No. L & T 901193/2011. The petition for nonpayment was apparently verified on July 21, 2011, and requested payment for the rents of May, June and July 2011.
Subsequent to both sides concluding their presentations the court asked the plaintiff's attorney if the lease (Plaintiff's Exhibit "1") contained the terms "structural repairs" and/or "roof". In response, plaintiffs attorney, Peter B. Ackerman, Esq., acknowledged that the words "structural repairs" do not appear in the lease and that the term "roof" is mentioned in Paragraph 48 of the lease. This court concludes that the mention of "roof" in paragraph 48 of the lease merely requires the defendant to keep it clean and in good repair at all times. Plaintiff's attorney requests this court to interpret paragraph 48 of the lease as an obligation on the part of the defendant to fix the roof if it's in disrepair. This court holds that the language contained in paragraph 48 of the lease fails to unequivocally require or impose upon the defendant an obligation to repair any damages to the roof.
This court credits the defendant's testimony to be that the roof was already in disrepair and leaking prior to his renting the subject premises and that he never did anything to damage the roof and cause it to leak.
The court made a final inquiry, for purposes of clarifying the record, as to how many floors the building had. The response received from the plaintiff's witness, THOMAS FITZGIBBONS, was that the building had a basement, a ground floor and a 2nd floor with the roof above it. Therefore, in effect, the defendant was not the only tenant within the building premises as he only rented office 202, not the entire building.
This court is cognizant that in dealing with nonresidential leases that it is well-settled under the common law that there is no implied obligation or duty on the part of the landlord to make repairs to the leased premises, that is, to keep the leased premises in repair. Emigrant Industrial Savings Bank v. One Hundred Eight West Forty Ninth Street Corporation, 255 A.D. 570, 8 N.Y.S.2d 354 (1st Dep't 1938), order aff'd, 280 N.Y. 79. The Court of Appeals has held that "the obligation of a landlord in any case to repair, or rebuild demised premises rest solely on express covenant ..." Witty v. Matthews, 52 N.Y. 512 (1873). Without an express covenant to that effect by the lessor, he is neither bound to repair the demised premises nor to pay for repairs made by the tenant. Potter v. New York, O. & W. Ry Co., 233 A.D. 578, 253 N.Y.S. 394 (4th Dep't 1931) aff'd, 261 N.Y. 489 (1933).
The lease, Plaintiff's Exhibit "1", is in writing, and is complete. Therefore, any provision for repairs will need to be determined from the literal language of the lease and therefore any evidence on the part of the tenant of an agreement for repairs by the landlord, made before or contemporaneously with the written lease, is inadmissible and will be ignored by this court. In addition, any agreement made after the lease was signed to the effect now claimed by the defendant as per his testimony at trial is without consideration and will also be ignored by this court. Eisert v. Adelson, 136 A.D. 741 (1910).
This court acknowledges that paragraph 48 of the lease requires tenant to maintain, keep in good repair and replace when necessary, certain specified items, ... and hung ceiling (ie., ceiling tiles), during the term of this lease ... all cost and expense ... is the responsibility of the tenant; and that the ... Roof ... must be kept clean and in good repair at all times. This court has also reviewed paragraph 37 of the lease pertaining to the tenant's responsibility regarding the exterior portions of the building and concludes that said paragraph is devoid of any mention of any responsibility by the defendant pertaining to the roof. In addition, this court has reviewed paragraph 44 of the lease pertaining to alterations and it is clearly stated therein that the tenant will not make any structural alterations in either the interior or exterior of the premises without written consent of the landlord. Finally, a review of paragraph "Second" of the lease which requires that the tenant take good care of the demised premises carves out an exception for structural alterations and furthermore requires the tenant to "... suffer the landlord to make repairs and improvements to all parts of the building; ... suffer the landlord to ... repair and replace ... the floors above and below ..."
Despite this court's review of paragraphs "48", "37", "44" and "Second" of the lease there is almost no direct imposition of responsibility upon the plaintiff, as landlord, for making any repairs, let alone structural repairs to the building wherein the defendant's leased premises are a part of. The imposition of responsibility upon the plaintiff, as landlord, according to the above-mentioned paragraphs of the lease for making structural repairs is implied as the tenant is required to permit access to the landlord to effectuate such repairs.
Initially this court makes a determination that a roof of any building is a vital and substantial portion of the structure, if not the most vital and substantial portion, and it is indispensable to the use of the building. It is commonly regarded as a structural component of a building, and any repairs made to the roof are regarded as structural repairs. cf., Kalus v. Food Fair, Inc., 220 Va. 529 ; 260 S.E. 212 (1979).
Whether a landlord in a particular case is required to make repairs depends on the language of the lease, as well as circumstances surrounding its creation. Collegetown of Ithaca v. Friedman, 110 A. D.2d 955 (1985). As far as this court is concerned the lease provisions pertaining to the obligation to effectuate repairs is ambiguous as responsibility for repairing the roof has not expressly been assigned to either the plaintiff or defendant.
This court has no doubt based upon the testimony of the defendant and his witness, ADRIAN GRAJCEVICI, that the roof to the building premises was in disrepair and leaking water prior to the defendant entering into the lease. As such, it is this court's factual determination that the defendant in no way caused nor is he responsible for any damages to the roof. Defendant's responsibility to keep the roof clean and in good repair at all times really concerns an issue of maintaining the roof. But a roof that is already leaking needs to be repaired to remedy the decay or damage as it needs to be restored or renewed to be returned to an undamaged state.
It is this court's determination notwithstanding that the lease in question pertains to non-residential premises that the landlord was under a duty to keep in repair those parts of the building which were not leased to the tenant and therefore were within the landlord's exclusive control. Melodee Lane Lingerie Company v. American Dist. Tel. Co., 18 N.Y.2d 57, 271 N.Y.S.2d 937 (1966). This rule, however, does not apply to premises or parts of premises leased to a tenant for his exclusive use. In the case at bar the defendant was not the only tenant within the building premises. Kilmer v. White, 254 N.Y. 64, 68, (1930) ; Kushes v. Ginsburg, 99 A.D. 417, 91 N.Y.S. 216 (1st Dep't 1904, aff'd 188 N.Y. 630 (1907). When the demised premises leased to a tenant constitute a part of the building, a duty is imposed upon the lessor to use reasonable care in keeping in suitable condition the ... roof and other parts of the building intended for the general use of all tenants and which are subject to the landlord's control. Arango v. Baron, 68 Misc.2d 274, 326 N.Y.S.2d 540 (City Civ.Ct.1971).
This court also takes note that the defendant's lease was of relatively short duration, i.e. 22–months, with a nominal rent of $700 per month. Repairing the roof constitutes a capital improvement. This court concludes that it is inequitable to require the defendant to incur the cost of an extensive repair to the roof when he has a short-term lease at a nominal rent and for which the plaintiff would receive the greater benefit of. This is especially so when the defendant is not the only tenant within the building.
In light of this court's determination that it was the landlord's responsibility to make the substantial repairs necessitated to repair the roof structure, not the tenant's responsibility, the refusal by the landlord to do so despite numerous requests by the tenant constituted a constructive eviction and tenant was not required to pay rent after such eviction. Being that the tenant could not occupy his suite without suffering constant water leaks emanating from the roof, there was a substantial interference with his possession and/or enjoyment and therefore his leasehold was essentially worthless. As such, this court holds that the tenant correctly analyzed the situation when he vacated the premises and surrendered the keys to the landlord within approximately 3–months time of his initial occupancy. It is clear to this court that notwithstanding that the defendant tenant is a commercial tenant, he is nonetheless entitled to his "rent money's worth" in services and maintenance.
This court furthermore credits the defendant's testimony that from the very commencement of his occupancy he filed complaints by telephone communications about the roof leaks. Said telephonic complaints were lodged prior to falling into arrears in his rental payments.
Therefore the court renders a judgment in favor of the defendant, QAZIM DODA, the matter is dismissed and no monetary award is granted.