111 Tenants Corp. v. Stromberg

• Decision Date: 10 April 1996
• Citation: 640 N.Y.S.2d 1018,168 Misc.2d 1014
• Parties: 111 TENANTS CORP., Petitioner, v. Linda STROMBERG, Respondent.
• Court: New York City Court

Page 1018

640 N.Y.S.2d 1018

168 Misc.2d 1014

111 TENANTS CORP., Petitioner, v. Linda STROMBERG, Respondent.

Civil Court of the City of New York New York County.

April 10, 1996.

Himmelstein, McConnell & Gribben, New York City (William J. Gribben, of counsel), and Thelen, Marrin, Johnson & Bridges, New York City (Thomas P. Higgins, of counsel), for respondent.

Jonathan Z. Minikes, New York City, and Karlsson & Ng, P.C., New York City (Kent Karlsson, of counsel), for petitioner.

EILEEN BRANSTEN, Judge.

Petitioner, 111 Tenants Corp. (hereinafter "Petitioner"), a cooperative housing corporation, commenced this summary holdover proceeding against one of its tenant-shareholders, Linda Stromberg (hereinafter "Respondent") after petitioner terminated her tenancy pursuant to a conditional limitation found in paragraph 31 of the proprietary lease. Specifically, petitioner asserts that respondent is in default of a covenant to surrender a duplicate key to the entrance door of her apartment as required under paragraph 25 of the proprietary lease.

Petitioner's cross-motion for summary judgment is granted. The clear language contained in paragraph 25 of the proprietary lease requires respondent to immediately give petitioner a duplicate key after installing a new lock to her apartment door. Paragraph 25 provides, in pertinent part, that:

The Lessor and its agents and their authorized workmen shall be permitted to visit, examine, or enter the apartment ... at any reasonable hour of the day upon notice, or at any time and without notice in case of emergency, to make or facilitate repairs in any part of the building or to cure any default by the Lessee and to remove such portions of the walls, floors and ceilings of the apartment ... as may be required for any and all purpose.... In order that the Lessor shall at all times have access to the apartment ... for the purposes provided for in this lease, the Lessee shall provide the Lessor with a key to each lock providing access to the apartment ... and if any lock shall be altered or new lock installed, the Lessee shall provide the Lessor with a key thereto immediately upon installation.

Paragraph 31(e) of the proprietary lease gives petitioner the right to terminate respondent's tenancy upon thirty day written notice of the default in the performance of any covenant. ¹

Respondent admits changing the lock to her apartment on or about April, 1995. The parties agree that respondent purposefully refused to provide petitioner with a key to the new lock unless petitioner accepted the key with certain restrictions. In fact, respondent continues to insist that because of her concerns for safety and privacy, petitioner should: 1) accept a duplicate key in a "Keysure," ² 2) provide respondent with additional written assurances that the duplicate key would only be used in emergencies, and 3) assure respondent that no additional copies of the key would be made.

Respondent, however, provides no evidentiary proof to substantiate her allegations that petitioner or petitioner's agents would negligently safeguard or improperly utilize the key to her apartment in contravention of the terms of the proprietary lease.

Respondent's concerns for her safety and security have not been lightly disregarded. On the contrary, the express terms of paragraph 25 of the proprietary lease impose express limitations upon petitioner's use of the duplicate key and the laws of trespass and negligence provide respondent with additional remedies in the event petitioner fails to reasonably safeguard or use the key.

In Levandusky v. One Fifth Ave. Apartment Corp., 75 N.Y.2d 530, 554 N.Y.S.2d 807, 553 N.E.2d 1317 (1990), the New York State Court of Appeals held that a standard of review analogous to the business judgment rule must be applied in determining challenges to decisions made by the board of directors of a cooperative corporation. In so holding, the court noted that "the cooperative ... is a quasi-government--'a little democratic sub society of necessity.' " Levandusky, 75 N.Y.2d at 536, 554 N.Y.S.2d 807, 553 N.E.2d 1317 (citation omitted). In Levandusky, the court aptly reasoned that:

the chosen standard of review should not undermine the purposes for which the residential community and its governing structure were formed: protection of the interest of the entire community of residents in an environment managed by the board for the common benefit. Levandusky, 75 N.Y.2d at 537, 554 N.Y.S.2d 807, 553 N.E.2d 1317.

Accordingly, the court concluded that "[s]o long as the board acts for the purposes of the cooperative, within the scope of its authority and in good faith, courts [should] not substitute their judgment for the board's." Levandusky, 75 N.Y.2d at 538, 554 N.Y.S.2d 807, 553 N.E.2d 1317. ³

Aside from some conclusory, unsupported and self-serving conjecture, respondent herein has failed to raise any triable issues in regard to the existence of any bad faith as motivating petitioner into enforcement of the key provision of the proprietary lease. On the contrary, petitioner has established that its decision to enforce the key provision and to terminate respondent's tenancy, has a "legitimate relationship to the welfare of the cooperative." Levandusky, 75 N.Y.2d at 540, 554 N.Y.S.2d 807, 553 N.E.2d 1317. Indeed, a clearly articulated and rational purpose behind the duplicate key requirement is to protect the property in an emergency and to facilitate repairs to the premises for the benefit of the cooperative and all of its shareholders.

Likewise, respondent has failed to show that there has been any retaliatory or selective enforcement of the key provision. There is no evidence presented to refute petitioner's affirmation that enforcement of the key provision against any other tenant-shareholder had never before been sought only because all the other tenant-shareholders have provided petitioner access to their apartments and have always remained in compliance with the key provision. Moreover, the record reveals that petitioner gave respondent numerous opportunities to surrender the duplicate key before resorting to legal process.

In an attempt to thwart petitioner's ability to enforce strict compliance with the duplicate key provision in the proprietary lease, respondent maintains that her failure to unconditionally surrender a duplicate key, does not constitute a breach of a substantial obligation of her tenancy. Respondent insists that her refusal is, at worst, a technical breach of the proprietary lease and should not result in the forfeiture of her sizeable investment and home.

Respondent correctly notes that statutory protections available to rent control and rent stabilized tenants prohibit forfeiture of leasehold interests unless "the tenant is violating a substantial obligation of his tenancy". See, Administrative Code of City of N.Y. § 26-048[a][1]; New York City Rent and Eviction Regulations [9 NYCRR] § 2104.2; Rent Stabilization Code [9 NYCRR] § 2524.1; see e.g., Park West Village v. Lewis, 62 N.Y.2d 431, 477 N.Y.S.2d 124, 465 N.E.2d 844 (1984). Indeed, recognizing that a proprietary lease is, in many respects, no different from any other type of lease and that the relationship between a tenant-shareholder and a cooperative corporation is akin to that of landlord and tenant, some courts have applied the "substantial obligation" analysis in determining the enforceability of proprietary lease terms and house rules by cooperative boards.

In 333-335 East 209th Street HDFC v. McDonnell, 134 Misc.2d 1022, 513 N.Y.S.2d 935 (Civ.Ct. Bronx Co.1987), the court refused to award a possessory judgment against a tenant-shareholder notwithstanding the fact that the tenant-shareholder was violating a cooperative house rule which prohibited the harboring of dogs. The court opined that absent a clear statement in the lease that a particular covenant is a substantial obligation, courts should not permit a forfeiture of a lease. In the same manner, in 930 Fifth Corp. v. King, 71 Misc.2d 359, 336 N.Y.S.2d 22 (App Term 1st Dept.) (Justice Jacob Markowitz dissenting) rev'd, 40 A.D.2d 140, 338 N.Y.S.2d 773 (1st Dept.1972), the Appellate Term held that:

where the parties to a lease expressly agree in writing that a certain breach (such as the harboring of a dog) will constitute a substantial violation, that agreement may be given effect ... unless there is clear evidence that the parties, in fact, do not deem it substantial.... There is no such express provision in the instant lease, nor any proof that the parties otherwise agreed that the violation in issue was to be deemed a violation of a substantial obligation of the tenancy. King, 71 Misc.2d at 362, 336 N.Y.S.2d 22.

On appeal, the Appellate Division reversed the ruling of the Appellate Term but did not take issue with the substantial obligation analysis applied by the Appellate Term. Instead, the Appellate Division held that a possessory judgment should have been granted because "[r]espondent's conduct ... indicated a belief that the provision [against harboring a dog] represented a substantial obligation of the tenancy." King, 40 A.D.2d at 142, 338 N.Y.S.2d 773.

Although the Appellate Division in King reached the same result suggested by the Appellate Term in the dissenting opinion of Justice Jacob Markowitz, the court failed to comment on the analysis therein which favored a business judgment approach as applied nearly twenty years latter in Levandusky, supra. In his dissent, Justice Markowitz wrote:

Once again we confront a situation where a landlord seeks to abort a lease for breach by the tenant and the majority finds breach but, from an equitable point of view, considers it not so serious as to call for the eviction of the tenant ... All the more should such rules be enforced where the apartment is a cooperative building. Occupancy agreements and proprietary leases include elements of self-determination not found in leases for...