Garza v. 508 W 112TH St., Inc.

• Decision Date: 01 December 2008
• Docket Number: No. 101238/06,101238/06
• Parties: ELIZABETH GARZA et al., Plaintiffs, v. 508 WEST 112TH STREET, INC., et al., Defendants.
• Court: New York Supreme Court

22 Misc.3d 920

869 N.Y.S.2d 756

2008 NY Slip Op 28501

ELIZABETH GARZA et al., Plaintiffs, v. 508 WEST 112TH STREET, INC., et al., Defendants.

No. 101238/06

Supreme Court of the State of New York, New York County.

December 1, 2008.

Belkin Burden Wenig & Goldman, LLP, New York City, for defendants.

David E. Frazer, New York City, for plaintiffs.

OPINION OF THE COURT

JUDITH J. GISCHE, J.

"One man's ceiling is another man's floor." (Paul Simon.)

Upon the credible evidence adduced at trial the court makes the following findings of fact and conclusions of law:

Plaintiffs are the rent-stabilized tenants of combined apartment 9B (combined apartment) in the building located at 508 West 112th Street in Manhattan (building). Defendants 508 West 112th Street, Inc. and Nunz Realty, LLC are respectively the former and present owners of the building (collectively owner). The heart of the parties' dispute is whether the exterior area (EA) to the combined apartment is a roof terrace that is an amenity of plaintiffs' rent-stabilized tenancy or simply a roof, plaintiffs' use of which is subject to a revocable license.

The combined apartment is located on the top, ninth floor of the building. There is a recess on all sides of the combined apartment that begins from the exterior point of the building on the eighth floor to the exterior walls of the combined apartment on the ninth floor. That wraparound recess, which is approximately 2,200 square feet of space, is the EA. The surface is made up exclusively of plain asphalt roofing paper. The outer perimeter is a parapet wall, made of brick and approximately three feet in height. There are three access points from the interior of the building to the EA. One is a door in a common vestibule area located outside the building elevators, but before the entrance to the combined apartment. This door is armed with a fire alarm and only plaintiffs and the owner have keys which allow the door to be opened without setting off the alarm. The other points of access to the EA are two doorways that exist entirely within the combined apartment.

In their complaint plaintiffs assert three causes of action for: (1) a declaration that the roof terrace is part and parcel of plaintiffs' tenancy under their lease and the Rent Stabilization Law of 1969 and the Rent Stabilization Code and that they enjoy exclusive access to and enjoyment of it; (2) an alternative declaration that they are entitled to use and occupancy of the roof terrace by reason of adverse possession; and (3) a permanent injunction against defendants entering the roof terrace without plaintiffs' permission. Plaintiffs also seek their attorneys fees from defendants. Defendants interposed an answer denying the material allegations in the complaint, asserting three affirmative defenses and two counterclaims. The first counterclaim seeks attorneys fees and the second counterclaim seeks a declaration that the roof, and access and use thereof, is not part and parcel of plaintiffs' tenancy under the lease agreement and Rent Stabilization Law of 1969 and the Rent Stabilization Code and that there is "nothing more" than a license that is revocable by the owner.

The parties each previously moved for summary judgment, which was denied by Honorable Emily Jane Goodman. The lower court decision was then affirmed on appeal. (Garza v 508 W. 112th St., Inc., 52 AD3d 271 [1st Dept 2008].) The Appellate Division held that there were issues of fact regarding whether a roof terrace existed within the meaning of the lease between the parties.

A bench trial was held in this matter on July 22 and September 26, 2008. Plaintiffs' only witness was coplaintiff, Elizabeth Garza. Defendants called two witnesses, Ronald Einziger, the president of Nunz, and an architect, George Cutsogeorge. In addition, the deposition of John Burke, former president of 508 West, was admitted into evidence in lieu of him testifying personally at trial. Post trial submissions were completed on October 30, 2008.

In 1982 Garza moved into the building. She rented what was then known as apartment 9B, which was located on the top floor of the building. At that time, there were two separate apartments on the ninth floor; apartment 9A (on the south side) and apartment 9B (on the north side). 9B was a one bedroom apartment. Along with the door leading from the elevator vestibule to 9B, there was also a door from the apartment that led directly out to the EA. 9A was a studio apartment directly adjacent to 9B. It was rented to a tenant named Edward Smith. 9A also had a door from the elevator vestibule that led into the apartment and another door that led directly out to the EA.

Garza signed a written lease for 9B. The owner's rental agent, Meryl Stewart, represented to Garza that the north side of the EA was for Garza's use and enjoyment. The lease described the premises as: "Apartment (and terrace, if any) 9B in the building 508-10 West 112th Street." The apartment number and the street address are handwritten. The other portions are preprinted on a rent-stabilized lease form. Paragraph 20 of the preprinted lease provides that: "No one is allowed to use the roof." At the bottom of the lease paragraph 31, added in handwriting, states "Usage of roof terrace subject to landlord's approval." This lease was renewed through 1989.

From 1982 up until the time the apartments 9A and 9B were combined, Garza used what she referred to as the front part of the EA for her own personal use. She kept light weight outdoor furniture on the EA. She also took meals, sunbathed, smoked cigarettes and entertained guests on the EA. She observed Smith making similar personal use of the "back portion" of the EA. No one from 508 West objected to her use of the EA and the only restriction placed on her was not to use furniture or heavy pots that damaged the surface. This was communicated to Garza by John Burke, then the president of 508 West.

Smith passed away in the summer of 1989. At that time Burke offered to rent 9A to Garza. It was agreed by 508 West and Garza that 9A and 9B could be combined into one apartment and that the cost of the renovation would be shared equally between them. In November 1989 Garza signed a new lease (1989 lease) for the combined apartment. The 1989 lease describes the premises as: "Apartment (and terrace, if any) 9B at 508-10 West 112th St. NY NY 10025." The apartment number and the street address are in handwriting and the other language is part of the preprinted rent-stabilized apartment lease form. The 1989 lease does not contain any language about the use of the roof terrace, and a fortiori there is no language restricting the use of the roof terrace that was contained in the earlier lease.^* Paragraph 20 of the 1989 lease states in pertinent part: "No one is allowed on the roof." The 1989 lease was periodically renewed through December 31, 2006.

The renovation work to combine the apartments was completed some time after the 1989 lease was signed. The combined apartment still retained the doors in each of the separate apartments that directly accessed the EA.

James McBride is Garza's husband. He moved into the combined apartment in 1991. Thereafter, he became a cotenant during one of the lease renewal periods. The plaintiffs went on to raise a family in the combined apartment. They now live in the combined apartment with their three young daughters. After the apartments were combined, Garza and her family continued to have use of the EA. It was used for recreational purposes, including increased entertaining and Garza began some gardening activities.

While plaintiffs' use of the EA was exclusive as to the other tenants, it was not exclusive as to the owner. After one incident, when another tenant had a party on the roof, the owner fire alarmed the public access door from the common vestibule. Keys to the door were thereafter held only by plaintiffs and the owner. This measure ensured that only the owner and plaintiffs had access to the EA. The owner, however, continued to have access for repairs, maintenance of the roof and the elevator and cleaning. At one point the owner brought prospective purchasers to the EA. Unless there was an emergency, the owner historically provided the plaintiffs with advance notice before it accessed the EA.

Although Garza and her family members had continual personal use of the EA, it was never listed as an essential service on any registration form filed with the Division of Housing and Community Renewal.

In 2005 a lead remediation project was undertaken by the owner in the combined apartment. Plaintiffs temporarily moved out of the combined apartment and two large sheds were erected on the EA for plaintiffs to store their personal possessions while they were relocated. The project was completed and the plaintiffs moved back into the combined apartment. Notwithstanding the owner's request that plaintiffs now remove their personal items from the sheds, as of the time of the trial, plaintiffs had not done so.

Discussion

The dispute between the parties is whether the 1989 lease included plaintiffs' right to use the EA, and if so, were the terms of the use of the EA a revocable license or a required service under the Rent Stabilization Code.

A license connotes use and occupancy of a grantor's premises while a lease connotes exclusive possession of a designated space, subject to rights specifically reserved by a lessor. (American Jewish Theatre v Roundabout Theatre Co., 203 AD2d 155 [1st Dept 1994].) If an owner allows a tenant to use a portion of the owner's property that is not part of the demised premises, such use is recognized as a license which is cancelable at will and without cause. Acquiescence in use does not create a right, since the law does not penalize good nature, nor does indifference ripen into a right. (Kohman v Rochambeau Realty & Dev. Corp., 17 AD3d 151 [1st Dept 2005].) The nature of the transfer of absolute control...