Rosefan Const. Corp. v. Salazar

• Decision Date: 15 July 1982
• Parties: ROSEFAN CONSTRUCTION CORP., Petitioner, v. Rose I. SALAZAR and Joseph R. Salazar, Respondents.
• Court: New York City Court

Page 1016

452 N.Y.S.2d 1016

114 Misc.2d 956

ROSEFAN CONSTRUCTION CORP., Petitioner, v. Rose I. SALAZAR and Joseph R. Salazar, Respondents.

Civil Court of the City of New York,

Queens County, Housing Part A.

July 15, 1982.

Grossman, Zafrin, Weiss & Kozupsky, New York City, for petitioner; Allen H. Weiss, New York City, of counsel.

Gellis & Melinger, New York City, for respondents; Jan Ira Gellis, New York City, of counsel.

DECISION

MAURICE HARBATER, Judge.

ISSUES

May the executor of the estate of a deceased rent stabilized tenant stand in the same shoes as his testator, with the same right to assign the unexpired residential lease?

OR

Does RPL § 226-b and its most recent interpretation by the Appellate Courts repeal, abrogate or modify the effects of the older statute, RPL § 236, regarding the assignment of a lease of a deceased tenant?

The above are issues of first impression, heretofore not dealt with.

FACTS

Petitioner, Rosefan Construction Corp., owner and landlord of the multiple dwelling located at 110-45 71st Road, Forest Hills, entered into a standard form apartment lease prepared by the Real Estate Board of New York, Inc. (COPYRIGHT 1978) ON JULY 23, 1980 WITH BESSIe ratner as a rent staBilized tenant. Bessie Ratner, now deceased, was to occupy the one-bedroom apartment, 7-H, at the above-named premises for a term of three years commencing October 1, 1980 and ending September 30, 1983 at a monthly rental of $319.50.

Under Covenant 18 of the lease agreement, any assignment or subleasing was to be made pursuant to RPL § 226-b. The lease also contained the following covenant: "Successor Interests: 31. The agreements contained in the Lease shall be binding on and apply to the Landlord and Tenant and their respective heirs, distributees, executors, administrators, successors, and, except as otherwise provided in the Lease, their assigns."

The named tenant, Bessie Ratner, died on December 17, 1981. On January 14, 1982, Malcolm S. Ratner and Eleanor Sher were named co-executors of the Estate of Bessie Ratner. The estate, not a party to this proceeding, paid the January rent.

The respondents, Rose I. Salazar and Joseph R. Salazar, are the present occupants of apartment 7-H. Respondents maintain that they were sharing the apartment with the deceased for a year preceding her death and that Mrs. Salazar was employed by the deceased as an in-house Nurse Assistant/Housekeeper. Respondents further contend that they are newlyweds which they claim accounts for Joseph R. Salazar's continuing maintenance of an apartment at 68-11 Burns Street, Forest Hills.

However, petitioner's exhibits controvert both of respondents' allegations that they are newlyweds and that the premises at 68-11 Burns Street was Mr. Salazar's "bachelor" apartment. A Williamsburgh Savings Bank savings account card states that the account had been opened jointly by Joseph R. Salazar and Rosa Isabel Salazar May 24, 1976. The address entered under the name of Joseph R. Salazar was 68-11 Burns Street. Rosa Isabel Salazar's address was entered as "SAME" with her occupation given as a housewife.

A Williamsburgh Savings Bank checking account card opened jointly by the respondents April 29, 1980 contains the savings account number in addition to the newly-opened checking account number. The address entered is again 68-11 Burns Street with Rosa Salazar's occupation given as a housewife.

By letter dated December 29, 1981, counsel for the respondents, Gellis & Melinger, by Jan Ira Gellis, purporting to represent By letter dated January 7, 1982, counsel for the petitioner informed counsel for the respondents that the estate's request to assign the premises to the respondents was rejected and petitioner considered the lease terminated. Respondents, thereafter, remaining in possession of apartment 7-H, attempted to pay February rent by personal check. Counsel for the petitioner returned the check with a letter dated February 3, 1982 advising the respondents that the assignment request was denied and that they should vacate the apartment. Respondents have not vacated.

the estate of the deceased, informed the petitioner of the estate's intent to assign apartment 7-H to the respondents, then in occupation, pursuant to RPL § 226-b. No other evidence has been offered by counsel for respondents that they at any time represented the Estate of Bessie Ratner.

ARGUMENTS

Petitioner contends that RPL § 236 is the applicable law in this case and should be strictly followed. Petitioner further contends that the estate's request to assign the premises permitted the petitioner to not only reject the request, but to terminate the lease at its option.

Respondents counter that under Francis v. Ferguson, 246 N.Y. 516, 159 N.E. 416 (1927), a covenant restricting the tenant's right to assign does not bind the executors of an estate unless the assignment provision explicitly includes the executors. Respondents further contend that the executors should be elevated to the rank of tenants, thereby requiring this court to apply the provisions of RPL § 226-b and not RPL § 236.

THE LAW

In Francis v. Ferguson, supra, strongly relied upon by the respondents, the defendant-landlord entered into a commercial lease with the tenant for a ten-year term at $16,000. rent per year for the first 6 years and $18,000. per year thereafter. The tenant died with 5 years remaining on the lease. Thereupon, the executors of the deceased tenant's estate attempted to assign the lease. The landlord refused to consent to the assignment. In a declaratory judgment, the court concluded that an executor of an estate is exempted from a covenant restricting assignment unless the assignment provision explicitly includes the executor.

The Ferguson court concluded that "interfere with the ordinary course of administration and compel them to hold the leased premises until the expiration of the term, something more than casual general words without meaning should appear."

Notwithstanding the no-assignment clause, the court refused to compel the estate to retain a commercial leasehold that would substantially interfere with the conversion of the assets. In effect, what the Ferguson court did was to release the estate from further liability under the lease--exactly what RPL § 236 does for the estate today.

Though the objectives of the Ferguson court, to relieve the estate from the burden of the lease and further the orderly administration of the estate's assets, are consistent with the objectives of RPL § 236, the commercial setting distinguishes it from the case at bar. Therefore, to apply the rule in Ferguson to a case concerning the assignment of a residential premises pursuant to RPL § 236 would be improper. Especially, in light of the statute's explicit applicability to an executor.

RPL § 236, passed in 1965, provides in part:

"Notwithstanding any contrary provision contained in any lease hereafter made which affects premises demised for residential use ... the executor, administrator or legal representative of a deceased tenant under such a lease, may request the landlord thereunder to consent to the assignment of such a lease ... Within thirty days after the mailing of the request for consent or of the additional information reasonably asked for by the landlord, whichever is later, the landlord Though RPL § 236 leaves all the options to the landlord, it adequately protects the interests of the estate. The estate is discharged from further liability once the landlord either terminates the lease or, by operation of law, if he unreasonably withholds his consent to an assignment request.

shall send a notice to the sender thereof of his election to terminate said lease or to grant or refuse his consent ... If the landlord terminates said lease or unreasonably refuses his consent, said lease shall be deemed terminated, and the estate of the deceased tenant and any other tenant thereunder shall be discharged from further liability thereunder as of the last day of the calendar month during which the landlord hereunder was required to exercise his option." (emphasis added)

Respondents, however, are asking this court to go beyond the plain meaning of RPL § 236, which, by its terms, is specifically applicable to the assigning of a deceased tenant's lease, and interpose the parallel text of RPL § 226-b. To do that would require the court to elevate the executor to the rank of tenant. That the court cannot do. The executors of an estate may occupy a premises in possession of an estate, but only in their representative capacities, not as tenants under the lease. Remford Corp. v. Rosenfeld, 274 A.D. 769, 79 N.Y.S.2d 756 (1st Dept. 1948). Though RPL § 226-b does have an intention similar to RPL § 236 to assist hard-pressed parties to get out from under unwanted leases or to cut their losses if forced to temporarily relocate, it applies only to a living tenant. See Kruger v. Page Management Co., Inc., 105 Misc.2d 14, 27, 432 N.Y.S.2d 295 (Sup.Ct.N.Y.Co.1980) (discussion of the legislative background to 226-b); Palmer v. 309 East 87th Street Co., 112...