Opinion
58209/2010.
Decided June 1, 2010.
A bench trial was held before this Court on May 10 and 11, 2010 in this proceeding commenced by the petitioner to evict the respondent, recover rent due, and other related relief. At the trial, the Court had ample opportunity to observe the demeanor and credibility of the witnesses who testified on behalf of the parties. After carefully reviewing and assessing all of the evidence in this case, including the testimony of the witnesses and the exhibits introduced by petitioner and by respondent, the Court finds as follows:
The petitioner owns a large parcel of land in Queens County, a portion of which was leased to the defendant for the construction of a self storage facility, The parties executed a written Ground Lease Agreement dated December 15, 1998. Paragraph 15.1 of this lease provides that the Tenant's customers, employees and visitors shall have continuous ingress and egress to the premises by way of the streets bordering the Overall Property to be evidenced by a recorded easement. In addition to the areas in the recorded easement, there were also common areas of which the tenant had non-exclusive use with other tenants.
In a letter dated May 17, 2006, the petitioner's attorney notified the respondent corporation, which pursuant to the lease had a right of first refusal, of the terms of a proposed month-to-month lease to Willie's Auto Repair. This lease was for a one story building that borders the south side of the easement area in front of respondent's self storage facility. Willie's Auto Repair was permitted to park five cars outside the building during daytime hours but no cars could be left outside overnight.
It is respondent's contention that Willie's Auto Repair parked well in excess of five vehicles in the common areas, parked vehicles overnight, and also parked vehicles in the respondent's easement area, thereby obstructing access to respondent's premises and depriving its employees, customers and invitees of adequate parking. Complaints were made to the petitioner but it to failed to remedy the condition. The respondent then notified petitioner in writing that it would withhold rent payments until the problem was rectified and ceased paying rent as of September, 2009.
Respondent's storage facility is not in operation since construction has not been completed and it has not been issued a certificate of occupancy. According to petitioner's principal, Eva Kukielka, this makes it difficult to obtain a tenant for the one story building that abuts the area in front of respondent's premises. It was for this reason that petitioner accepted Willie's Auto Repair as a month to month tenant. This witness also asserted that the petitioner had made repeated efforts to insure that Willie's Auto Repair abided by its agreement to limit the number of parked vehicles outside its building and was prepared to commence an eviction proceeding, if this tenant continued to violate its lease.
In order to justify the non-payment of rent, the acts of the landlord must preclude the tenant from the beneficial enjoyment of the premises, a diminution of the beneficial enjoyment of the property is not sufficient. There must also be an ouster or, if the eviction is constructive, an abandonment of the premises, ( see Herstein v Columbia Pictures, 4 NY2d 117, 121-122). An actual eviction occurs when the acts of the landlord result in an ouster of the tenant and requires a physical expulsion or exclusion. Where the tenant is excluded from a portion of the premises, the eviction is actual, although only partial. A constructive eviction exists where there has been no physical expulsion or exclusion, but the acts of the landlord substantially and materially deprive the tenant of the beneficial use and enjoyment of the premises. To claim a constructive eviction, the tenant must abandon the premises ( Barash v Pensylvania Terminal Real Estate Corp., 26 NY2d 77, 82-83); also see Boreel v Lawton, 90 NY 293; Edgerton v Page, 20 NY 281; Duane Reade v Reva Holding Corp. , 30 AD3d 229 ).
It is a long standing rule that an actual eviction from part of the premises bars an action to recover rent or use and occupation, although the tenant remains in possession of the residue of the premises ( see Christopher v Austin, 11 NY 216; Fifth Ave. Bldg Co. v Kernochan, 221 NY 373; Barash v Pensylvania Terminal Real Estate Corp., supra; Whaling Willie's Roadhouse Grill, Inc. v Sea Gulls Partners, Inc., 17 AD3d 453; Elmwood, Inc. v Hassett, 107 AD2d 285; Bijan Designer v St. Regis, 221 Misc 2d 175). More recently, it has been held that constructive eviction is a defense to nonpayment of rent, even if the tenant has abandoned only a portion of the premises due to the acts of the landlord ( Minjak Co. v Randolph, 140 AD2d 245, 248; also see Abern Realty Co. v Clay Craft Planters Co., Inc., 188 Misc 2d 314; East Haven Associates Inc. v Gurian, 64 Misc 2d 276)
In order to claim a partial constructive eviction, the tenant must be compelled to abandon a part of the premises ( Broadway Copy Service, Inc. v Broad-Wall Co., 77 AD2d 827; Manhattan Mansions v Moe's Pizza, 149 Misc 2d 43). A partial constructive eviction was found to exist where the tenant's parking spaces and access to its loading dock were severely restricted by a loading dock erected by another tenant ( Abern Realty Co. v Clay Craft Planters Co., Inc., supra), and where the tenant was barred from using its only loading dock by a steel chain link fence constructed by an adjoining landowner ( Kru. Inc. v l000 Massapequa, 238 AD2d 314). A partial actual eviction, which requires an ouster from part of the premises, was found in a case where the tenant was deprived of part of an easement by another tenant. The landlord, who had granted a parking easement to the tenant, leased two thirds of the parking area to a fast food restaurant which constructed a restaurant thereon, thereby permanently depriving the tenant of the major portion of its parking easement ( 487 Elmwood v Hassett 107 AD2d 285). The common predicate in these cases, where the partial eviction resulted from the actions of a party other than the landlord, is the substantial and permanent effect of the intrusion.
In this case, the vehicles parked by Willie's Auto Repair in the vacant areas adjoining the building it leases, rarely prevented entry to respondent's premises and despite these parked vehicles, there was ample parking available for the respondent's employees and invitees. Moreover, these parked vehicles were readily moved on the few occasions that they obstructed the entrance to the respondent's premises. Any obstruction that these vehicles created was neither permanent nor substantial. They were at most an intrusion which inconvenienced the respondent. However, the vehicles parked outside by Willie's Auto Repair did not deprive the respondent of its easement rights and did not result in a partial constructive or actual eviction that justified the nonpayment of rent ( see Duane Reade v Reva Holding Corp., supra; 127 Restaurant Corp. v Rose Realty Group, LLC 19 AD3d 172 ; Broadway Copy Service, Inc. v Broad-Wall Co., supra; Two Rector Street Corp. v Bein, 226 AD 73). Therefore, the petitioner is liable for monthly rent due from October 2009 to May 2010 at the rate of $6,250.00 a month, plus late charges of $250.00 a month, making a total of $52,000.00.
The lease between the parties also obligates the respondent to pay real estate taxes, which paragraph 5.1 defines, in part, as "all real estate taxes and assessments for betterments and improvements that are levied against the Premises . . . net of any applicable abatements, refunds or rebates." Paragraph 5.2 (a) provides that the Tenant is to reimburse the Landlord within fifteen days of receipt of an invoice accompanied by a computation of the amount payable.
The respondent has failed to pay the invoice dated December 7, 2009 for real estate taxes in the amount of $39,068.70 for the period January 1 to June 30, 2010. This invoice sets forth a computation showing a total due of $49,075.20, less the landlord's share of $10,006.50, leaving a balance due from respondent of $39,068.70. The respondent contends that this computation is based on the unsubstantiated assumption that any increase in the real estate taxes is attributable to improvements made to respondent's premises.
The Court credits the testimony of petitioner's principal, Eva Kukielka, that the computation standard employed in the real estate tax invoice of December 7, 2009 was previously used and accepted by the respondent to determine its share of the real estate taxes ( cf. Wisser Oil Co. v Ganfrank Holding Corp., 163 Misc 357 where the landlord completely failed to apportion the taxes). Moreover, the respondent did not introduce any evidence that the petitioner's computation of respondent's share of the real estate taxes was erroneous. Therefore, the respondent is also liable to the petitioner for real estate taxes in the amount of $39,068.70, plus a late charge of $1,562.75, making a total of $40,631.45.
In addition, pursuant to the terms of the lease (Paragraph 14.1), the petitioner is entitled to recover reasonable attorney fees which are to be determined at a hearing.
Accordingly, judgment of possession and a money judgment in the amount of $92,631.45 is awarded in favor of petitioner, Res Land, Inc.
Warrant to issue forthwith and execution stayed until June 30, 2010, on condition that respondent, SHS Baisley, LLC, pays past due rent, real estate taxes and late charges in the amount of $92,631.45.
A hearing to determine the amount of the attorney fees due petitioner will be held in Part 102 on June 14, 2010 at 9:30 a.m.
This constitutes the opinion, decision and order of the Court.