Madison 52nd Corp. v. Ogust

• Decision Date: 22 March 1966
• Citation: 268 N.Y.S.2d 126,49 Misc.2d 663
• Parties: MADISON 52ND CORPORATION, Landlord, v. Catherine L. OGUST, d/b/a Penthouse Gallery, Tenant.
• Court: New York City Court

Page 126

268 N.Y.S.2d 126

49 Misc.2d 663

MADISON 52ND CORPORATION, Landlord, v. Catherine L. OGUST, d/b/a Penthouse Gallery, Tenant.

Civil Court of the City of New York, New York County, Trial

Term, Part II.

March 22, 1966.

Goldwater & Flynn, New York City, for petitioner, Leon Liner, New York City, of counsel.

Gerard Wollenberger, New York City, for respondent-tenant, Louis Ogust, New York City, of counsel.

GEORGE STARKE, Judge.

In this holdover proceeding the landlord seeks to evict the tenant on the ground that the tenant has violated a substantial obligation of the tenancy by placing signs in the window in contravention of the lease.

There is no question that the tenant did not obtain the landlord's consent and therefore violated that portion of paragraph 38 of the lease which reads as follows:

'The Tenant may, however, use and display such nonilluminated signs, posters, placards or the like, which shall be visible to pedestrians, to carry on the business described in paragraph 2 of this lease as the Landlord may approve, which approval shall not be unreasonably withheld.'

The landlord did not seek to have the signs removed by obtaining injunctive relief, although it did pursue the injunction remedy in another proceeding in order to obtain access to the tenant's premises to make repairs. It was pointed out in Emrite Realty, Inc., v. Neal, Mun.Ct., 196 N.Y.S.2d 883, that the impact of a holdover proceeding seeking the ouster of a tenant and resulting in a forfeiture of the tenancy cannot be compared with the milder form of injunctive relief. The court therein further stressed that while courts of equity are careful in granting injunctions, it is important that greater care be exercised in summary proceedings where forfeitures are involved. The court held that, although there was a breach of the lease, the evidence was insufficient to establish that the violation was substantial enough to call for the forfeiture of the lease. It suggested that upon a fuller record the landlord might establish a case for injunction.

Forfeitures are not favored in equity (3 New York Law of Landlord and Tenant, section 998), and technicalities will not be permitted to work injustice or oppression (98 Delancey St. Corp. v. Barocas, Sup., 82 N.Y.S.2d 802, aff'd 275 App.Div. 651, 86 N.Y.S.2d 659). Forfeiture should not be sought on a narrow ground; the claimed violation must be substantial in order to call for forfeiture (Kearns v. Barney's Clothes, Inc., 38 Misc.2d 787, 239 N.Y.S.2d 318). Where the alleged violation is of a trivial and inconsequential nature, it should not be the basis of a forfeiture of a long-term lease (Madison Stores v. Enkay Sales Corp., 207 Misc. 1091, 142 N.Y.S.2d 132). In order to obtain a final judgment of eviction against a tenant, the landlord is required to prove that the breach of the lease is a violation of a Substantial obligation of the tenancy (Fanchild Investors, Inc. v. Cohen, 43 Misc.2d 39, 250 N.Y.S.2d 446; Mutual Redevelopment Houses, Inc. v. Hanft, 42 Misc.2d 1044, 249 N.Y.S.2d 988; Sigsbee Holding Corp. v. Canavan, 39 Misc.2d 465, 240 N.Y.S.2d 900; Jerome Realty Co. v. Yankovich, 35 Misc.2d 183, 232 N.Y.S.2d 282; 940 St. Nicholas Ave. Corp. v. Grant, 35 Misc.2d 165, 232 N.Y.S.2d 207; Stern v. Carroll, 28 Misc.2d 507, 219 N.Y.S.2d 820; Taylor, Inc. v. Teller, 28 Misc.2d 508, 208 N.Y.S.2d 142; Parker v. Johnson, 26 Misc.2d 31, 206 N.Y.S.2d 594; Parkside Development Co. v. McGee, 21 Misc.2d 277, 193 N.Y.S.2d 910; Zalaznick v. Imbembo, 35 Misc.2d 164, 232 N.Y.S.2d 442; Rental Realty Corp. v. Lawrence, 14 Misc.2d 1070, 180 N.Y.S.2d 111; Stern v. Harrold, 12 Misc.2d 73, 174 N.Y.S.2d 484; Kon v. Providencia Miah, 11 Misc.2d 152, 171 N.Y.S.2d 363; 974 Realty Corp. v. Ledford, 9 Misc.2d 240, 171 N.Y.S.2d 908; Hardav Realty Corp. v. Donahue, 8 Misc.2d 951, 166 N.Y.S.2d 593; Smith Real Estate v. Byrne, 3 Misc.2d 559, 112 N.Y.S.2d 893; A. B. Cabrini Realty Co. v. Newman, City Civ.Ct., 237 N.Y.S.2d 970; Kingsway-14th Bldg. Corp. v. Flickstein, City Civ.Ct., 234 N.Y.S.2d 812; Lansis v. Meklinsky, 10 A.D.2d 649, 198 N.Y.S.2d 247; Gilbert v. Becker, Sup., 142 N.Y.S.2d 888; Sanfilippo v. Coster, Sup., 91 N.Y.S.2d 738, appeal dismissed, App.Div., 100 N.Y.S.2d 144).

The question presented is whether the violation is substantial enough to justify so drastic a remedy as the eviction of the tenant. One must ask: 'Is the violation of real substance? Is it important, material and consequential? Is the violation sufficiently serious in character to warrant the tenant's ouster and a forfeiture of the lease?' All the physical facts and surrounding circumstances must be examined. Other factors besides good faith must be considered. One should not lose sight of the fact that equitable relief in the form of an injunction may be available. Keeping in mind that the law abhors forfeitures, consideration must also be given to the fact that a long-term lease is involved.

The landlord here leans heavily on Bernstein v. Bernstein, 214 App.Div. 790, (lower court opinion reported fully in 210 N.Y.S. 539), where the Appellate Division reversed the trial court (Carswell, J.), which had held that the placing of the sign was too insubstantial in nature to warrant so drastic a remedy as a forfeiture of a long-term lease. A check of the record reveals that the Appellate Division reversed by a three-to-two vote, but did so on another ground entirely. In deciding that the defendant deliberately and wilfully violated the lease provision against placing signs on the building, the court held that the defendant's acts were violative of the covenant prohibiting assignment of the lease or the subletting of the premises or a part thereof. The Court of Appeals, in affirming in 243 N.Y. 559, 154 N.E. 604, held that the covenant of subletting without the written consent of the landlord was breached.

At any rate, assuming the landlord to be correct in its argument that the Appellate Division reversed the trial court by a three-to-two vote on the question of the...