Opinion
LT69208/2003.
Decided March 16, 2004.
Rutherford Place, LLC, represented by: Belkin Burden Wenig Goldman, LLP (by Joseph Burden and Joseph Mitchell, of counsel), New York, NY 10016, for Petitioner.
Sangam Pande, represented by: Barry J. Yellin, Esq., New York, NY, for Respondent.
Pleadings
Petitioner Rutherford Place, LLC, ("petitioner" or "Rutherford") commenced this holdover proceeding against Sangam Pande ("respondent" or "Pande") to recover possession of Rent Stabilized Apartment # 4B located at 205 East 16th Street, New York, New York ("subject premises") on the grounds that respondent allegedly erected sheetrock partitions and a plywood deck in violation of both the law and the "no-alteration" clause of the lease between the parties. Respondent interposed a written answer essentially denying the allegations of the petition.
Trial
This proceeding was referred to this Court for trial on December 30, 2003. With the consent of the parties, this Court personally inspected the subject premises on January 6, 2004. The trial was conducted on January 14, 22, and 30, 2004. Both parties submitted memoranda of law on February 26, 2003.
Witnesses
Petitioner called three (3) witnesses, Herbert Hirsch ("Hirsch"), managing member of petitioner, Kevin Kinkead ("Kinkead"), the superintendent, and Alfred O. Saulo ("Saulo"), a registered architect. Respondent called himself and David Turner ("Turner"), a registered architect.
Findings of Fact
Petitioner is the owner of the building at 207 East 16th Street, New York, New York (the "building") in which the subject premises is located (see Petitioner's Trial Exhibit "1"). The building is a multiple dwelling and there is currently an effective multiple dwelling registration on file with the Office of Code Enforcement of the City of New York Department of Housing Preservation and Development ("HPD") (see Petitioner's Trial Exhibit "2"). The subject premises is Rent Stabilized and duly registered with the New York State Division of Housing and Community Renewal ("DHCR") (see Petitioner's Trial Exhibit "3").
Pande is the tenant of record of the subject premises pursuant to an initial lease dated April 1, 1994 ("Lease") (see Petitioner's Trial Exhibit "4"). The parties executed the most recent lease renewal dated November 7, 2002, for a one (1) year term commencing April 1, 2003, and ending March 31, 2004, at $2,458.12 per month (see Petitioner's Trial Exhibit "5").
The subject premises is a two level "loft" apartment (see Petitioner's Trial Exhibit "15"). There is a low ceiling covering the entrance way and the portion of the subject premises near the front door. The bathroom, kitchen and dinette area are underneath the mezzanine or upper level of the subject premises. There is a staircase on the edge of the mezzanine which leads up to the mezzanine level where both a sleeping area and second bathroom are located. The subject premises then opens into an airy two-story living room with a ceiling height of about 18 feet. The only windows in the subject premises are in the rear of the living room.
By letter dated August 19, 2002, respondent sought petitioner's consent to install "floor standing partitions made of plywood or some other material to block light and sound" (see Petitioner's Trial Exhibit "6"). Hirsch called Pande and made arrangements to come to the subject premises to discuss the proposal, and they met several days later. Hirsch told Pande that he would have to prepare a diagram laying out the proposed construction so his architect could review the plan and determine if the proposed construction was permissible.
By letter dated August 28, 2002, Pande faxed Hirsch a diagram (see Petitioner's Trial Exhibit "7"). The diagram provided for soundproofing on the side walls of the subject premises and the creation of a new room to the right of the entrance to the subject premises below the mezzanine.
On August 28, 2002, respondent had scores of wooden 2x4's brought into the subject premises along with many pieces of sheetrock without petitioner's consent. The 2x4's were assembled and nailed to form wooden frames for new additional rooms. The sheetrock was cut to size and affixed to the 2x4's. Holes were cut in the sheetrock to install windows and doorways in the proposed rooms. Respondent constructed a plywood wooden deck which was cut to size and affixed atop the newly built walls creating a ceiling for the rooms and extending the deck of the mezzanine.
When Hirsch learned that Pande commenced construction on August 28, 2002, Hirsch advised Pande by letter dated August 29, 2002 to halt construction in the subject premises because petitioner had not consented to the proposed construction (see Petitioner's Trial Exhibit "8"). By letter dated August 28, 2002 (sic), Pande responded to Hirsch stating that ". . . there is no construction being done in my apartment. I am assembling sound proof partitions using 2x4's, sheetrock and sound proofing material. These partitions will not be attached to the walls and/or ceiling . . . I assume that I do not need your approval to assemble these partitions, however, if you feel that I do then please give me your approval or give your reason for denying approval . . ." (see Petitioner's Trial Exhibit "9").
By letter dated September 5, 2002, petitioner denied respondent's proposed renovation of the subject premises based on Saulo's written assessment dated September 3, 2002 (see Petitioner's Trial Exhibit "10"). Pande did not remove the unauthorized renovation.
In or about December, 2003, Kinkead entered the subject premises for the first time to investigate a leak complaint from a downstair's neighbor. Kinkead discovered two four-sided rooms, one on each side of a hallway created in the vast living room. Each of the rooms had a window and door installed. Kinkead noticed a plywood deck built above the constructed rooms.
In or about January, 2003, Kinkead allegedly entered the subject premises when respondent was not home and without Pande's authorization. Kinkead then took photographs of the two newly constructed rooms and the plywood deck (see Petitioner's Trial Exhibits 13 "A-K").
On or about February 18, 2003, Kinkead again inspected the subject premises. Thereafter, he drew a diagram detailing the construction of the subject premises (see Petitioner's Trial Exhibit "12"). He described two four-walled rooms measuring approximately eight feet by eight feet, topped with a makeshift ceiling about eight feet high in the living room. Respondent constructed walls made out of 2x4's and sheetrock with doorways and windows cut into each of the rooms.
Approximately a month later, petitioner served respondent with a "Ten Day Notice of Default and Opportunity to Cure" dated March 14, 2003 ("Notice to Cure") alleging respondent must cure breaches of the Lease on or before March 24, 2003, as follows:
PLEASE TAKE FURTHER NOTICE, that you have violated and continue to violate substantial obligations of your tenancy in that in violation of Paragraph 10 of the Lease, you have made alterations, additions, improvements or installations to the demised premises without the prior written permission and consent of the Landlord. More specifically, you have erected two cube shaped wooden and plasterboard structures/wooden and plasterboard partitions within the premises created two new interior rooms; you have erected a wood bridge between the two cube shaped wooden and plasterboard structures/wooden and plasterboard partitions creating a ceiling/mezzanine; and you have erected/attached ladders to the two cube shaped wooden and plasterboard structures/wooden and plasterboard partitions creating interior stairs.
PLEASE TAKE FURTHER NOTICE, that you have violated and continue to violate substantial obligations of your tenancy in that in violation of Paragraph 11 of the Lease, you have not complied with all laws, statutes, ordinances and regulations of federal, state, county and municipal authorities. More specifically you are in violation of the following laws, statutes, ordinances and regulations of federal, state, county and municipal authorities:
(a) the erecting of the two cube shaped wooden and plasterboard structures/wooden and plasterboard partitions creating two new interior rooms is in violation of Multiple Dwelling Law Sections 30 and 32;
(b) the erecting of the two cube shaped wooden and plasterboard structures/wooden and plasterboard partitions creating two new interior rooms is in violation of the Housing Maintenance Code Section 27-2058; and
(c) the erecting/attaching of ladders to the two cube shaped wooden and plasterboard structures/wooden and plasterboard partitions creating an interior staircase is in violation of the Building Code Section 27-375.
On March 28, 2003, four days after the expiration of the Notice to Cure, Kinkead entered the subject premises for a fourth time to repair a leak (see Petitioner's Trial Exhibit "14"). Kinkead observed the same partitioned rooms and plywood deck described on the prior visit except that the deck was now partially removed.
Petitioner served respondent with a Seven (7) Day Notice of Termination dated April 11, 2003 ("Notice of Termination") terminating the tenancy effective April 10, 2003. Thereafter, petitioner commenced this proceeding.
On May 8, 2003, respondent consented to Saulo inspecting the subject premises. Kinkead was also present at the inspection. This was the first of three inspections by Saulo. Saulo described several full height partitions in the dinette area, effectively creating an interior room below the mezzanine. Respondent subdivided the living room creating two rooms with a hallway down the middle. The room on the left side of the living room was eight feet high. One of the rooms had an entrance door and the other room was open from the hallway. The rooms also contained windows. The rooms had floor boards and joists which were resting on the walls of the newly constructed rooms. The floor joists were improperly placed, undermining its structural support.
Saulo inspected the subject premises again in or about October, 2003. Saulo noticed similar conditions in the subject premises as on his last inspection, except that he couldn't recall if the interior room in the dinette area still existed. On the court inspection on
January 6, 2004, the plywood deck as well as the rooms in the dinette area and the living room were removed. However, a portion of a 15 to 18 feet wall remained precariously "wedged" in place to the ceiling on the west side of the subject premises.
Respondent admitted he ". . . installed four movable partitions . . . [and] placed temporary plywood pieces on top of two of the partitions for storage purposes, said plywood was removable at any time." (see Respondent's Post-Trial Memorandum at p. 3). Respondent only contested the construction of an interior room in the dinette area as well as the precise physical configuration of the partition walls.
Conclusions of Law
Issue
The primary issue to be determined herein is whether respondent's construction of free standing interior rooms and a plywood deck in the subject premises constituted an "alteration" in violation of ¶ 10 of the Lease.
"No-Alteration" Clause
It is well settled that a tenant may not make significant "alterations" to a demised premises without the express consent of the landlord. Agate v. Lowenbein, 57 NY 604 (1874) (lease permitted the tenant to make alterations provided that it did not damage the demised premises; Court held there was a triable issue of fact whether removing partitions and chandeliers as well as destroying plumbing work damaged the demised premises); Freehold Investments v. Richstone, 34 NY2d 612, 355 NYS2d 363 (1974) (restrictive lease provision prohibited tenant from making any alterations without consent of the landlord; tenant's removal of old kitchen cabinets and replacement with new oak veneer cabinets as well as installation of a "hung ceiling" in the living room and recessed light fixtures constituted a breach of the lease).
The modern view of what constitutes a violation of a "no-alteration" clause was concisely expressed in Solow v. Lubliner, NYLJ, June 6, 1990, at 21, col 2 (App Term 1st Dept) (installation of a mirrored room divider and mirrors on walls was not an "alteration"). The Appellate Term determined that the petitioner must demonstrate that the "alteration" either 1) materially changed the nature and character of the leased premises; or 2) caused permanent or lasting injury to the leased premises.
Generally, many aesthetic changes to the leased premises would not violate a "no-alterations" clause. For instance, courts have held that a tenant may install mirrors on the walls (Solow v. Lubliner); replace a 27 year-old stove ( Ram I, LLC v. Stuart, 248 AD2d 255, 668 NYS2d 888 [1st Dept 1998]); replace defective appliances and fixtures ( Garay v. Devine, NYLJ, October 27, 1989, at 21, col 1 [App Term 1st Dept]); ( Icolad Assocs. v. Frazer, NYLJ, April 17, 1990, at 21, col 1 [App Term 1st Dept]); or install a valance for hanging drapes (Harmil Realty Co. v. Feld, NYLJ, March 11, 1987, at 6, col 4 [App Term 1st Dept]).
On the other hand, courts have found that a tenant may not erect an enclosure for a terrace ( Park City Estates Tenants Corp. v. Lohani, NYLJ, January 15, 1991, at 25, col 3 [App Term 2nd Dept]); construct a deck on an outside patio ( Rutherford Tenants Corp. v. Kaufman, 212 AD2d 416, 622 NYS2d 691 [1st Dept 1995]); install a new deck and concrete patio in the backyard ( Marbar, Inc. v. Katz, 183 Misc2d 219, 701 NYS2d 884 [Civ Ct NY Co Hoffman, J., 2000]); install skylights ( 1574 Third Realty Corp. v. Powell, NYLJ, July 16, 1999, at 26, col 2 [App Term 1st Dept]); install air-conditioner through wall with removal of bricks ( Bayview Gardens Ltd. v. Sperazza, NYLJ, September 10, 1997, at 29, col 1 [Civ Ct Kings Co Finkelstein, J.]); board up windows ( J.T. Tai Co., Inc. v. Barnes, NYLJ, September 14, 1988, at 17, col 1 [App Term 1st Dept]); move a toilet ( Vignette Realty Corp. v. Fernandez, NYLJ, April 11, 1986, at 15, col 3 [App Term 2 11th Jud Dists]); alter an entrance ( Hyde Park Assoc. v. Solomon, NYLJ, April 23, 1985, at 12, col 5 [App Term 2nd 11th Jud Dists]); or replace windows ( Haberman v. Hawkins, NYLJ, April 9, 1990, at 29, col 6 [App Term 1st Dept]).
Discussion
Paragraph 10 of the Lease provides, in pertinent part, as follows:
You cannot build in, add to, change or alter, the apartment in any way, including wallpapering, painting, re-painting or other decorating, without getting owner's written consent before you do anything. . . .
This is a very restrictive clause. It is similar to the "no-alteration" clause enforced in Freehold Investments v. Richstone, 72 Misc2d 624, 340 NYS2d 362 (App Term 1st Dept) rev'd 42 AD2d 696, 346 NYS2d 718 (1st Dept 1973) rev'd 34 NY2d 612, 355 NYS2d 363 (1974). In that case, the Appellate Term stated that:
The lease . . . expressly prohibits any alterations without the consent of the landlord and specifies that even papering the walls or changing the color of the wall paint is a prohibited alteration and a breach of a substantial obligation of the lease. Clearly, under the terms of the lease, the tenant was not at liberty to make the substantial alterations he undertook, without consulting the landlord.
Similarly, in this case, respondent was not at liberty to make substantial alterations which the petitioner timely and affirmatively rejected. Respondent materially changed the nature and character of the subject premises ". . . by creating additional space in tenant's . . . [one bedroom loft] apartment." De Lorenzo v. DiBlasi, NYLJ, September 27, 1988, at 17, col 2 (App Term 1st Dept) ("the installation of a 13.5 feet by 6.5 feet loft platform and stairway materially changed the nature and character of the demised premises . . .").
In other words, Pande effectively converted this one bedroom apartment into a three bedroom apartment by constructing enclosed interior rooms approximately eight feet by eight feet in the living room with self-contained windows and doors. Respondent also built a plywood platform deck with floor joists resting on the walls of the interior rooms which he either used for storage or as additional living space.
These prohibited alterations were not insubstantial aesthetic changes such as the placement of a "mirrored room divider" or "Japanese paper screens" which the courts have permitted. (See, Solow v. Lubliner; Sternklar v. 19 E. 80th Street Assocs., 171 AD2d 528, 567 NYS2d 258 [1st Dept 1991]) (installing Japanese paper screens was not necessarily prohibited alterations.) In fact, respondent's substantial construction permeated every living area in the subject premises except for the kitchen and bathrooms.
Moreover, the construction is not readily removable. On the last inspection of January 6, 2004, a large portion of 2x4 framing approximately 15 to18 feet in width and height remained "wedged" to the ceiling on the west side of the subject premises. Further, the former wall as well as the plywood platform situated on top of the interior rooms are unsafe conditions due to improper construction methodologies and support.
Conclusion
Based on the preponderance of the credible evidence, this Court finds respondent breached the restrictive "no-alteration" clause of the Lease by failing to remove the aforementioned structures after the service of the predicate notices and the commencement of this proceeding.
Accordingly, this Courts grants petitioner a final judgment of possession. Issuance of the warrant of eviction is stayed ten (10) days pursuant to RPAPL § 753(4) for respondent to cure the default under ¶ 10 of the Lease.
The foregoing constitutes the decision and order of this Court. Courtesy copies of this decision and order have been mailed to counsel for both parties.