Taylor v. Eli Haddad Corp.

• Decision Date: 14 March 1983
• Parties: Jonathan TAYLOR, Plaintiff, v. ELI HADDAD CORP., Defendant.
• Court: New York Supreme Court

Page 886

460 N.Y.S.2d 886

118 Misc.2d 253

Jonathan TAYLOR, Plaintiff, v. ELI HADDAD CORP., Defendant.

Supreme Court, Special Term,

New York County, Part I.

March 14, 1983.

Hartman, Ule & Rose, New York City, for plaintiff.

Richard W. Meirowitz, New York City, for defendant.

STEPHEN G. CRANE, Judge:

Motions No. 193 on the calendar of September 16, 1982, No. 118 on the calendar of October 12, 1982, and No. 94 on the calendar of November 8, 1982, are consolidated and decided herein.

Plaintiff and defendant are parties to a lease dated August 10, 1978, for a term to expire on September 30, 1982. The rent for the last two years was $600 monthly. The lease provided that the tenant shall use and occupy the premises, the second floor at 5 West 20 Street, for a photo studio and for no other purpose. Further clauses required the tenant to avoid use or occupancy that would violate the certificate of occupancy; guaranteed the tenant's quiet enjoyment upon his performing the tenant's terms and conditions of the lease; provided that no representations except as found in the lease would be binding on the landlord or give any rights to the tenant; stipulated that landlord's receipt of rent knowing of a breach of any covenant shall not be a waiver of any provision of the lease; and imposed on the tenant the landlord's attorney's fees incurred because of any default of the tenant.

On September 1, 1982 defendant served a Notice to Cure requiring plaintiff by September 17, 1982, to discontinue his residential or joint living-working use of the demised premises. He promptly commenced this action seeking a declaration that defendant had waived any breach due to his joint residential and professional use and that he is entitled to the protection of the new Loft Law that added Article 7-C to the Multiple Dwelling Law effective June 21, 1982 (the "Loft Law"). He claimed damages, punitive and compensatory, for harassment and for fraud and his ad damnum asked for attorney's fees. On September 9, 1982, plaintiff secured an order to show cause containing a stay of efforts to enforce the Notice to Cure or to evict plaintiff. The stay has been continued pending determination of Motion 193 of September 16, 1983 by which plaintiff seeks an injunction pendente lite to like effect.

Before answering, defendant brought on Motion No. 118 of October 12, 1982, to dismiss the harassment and fraud causes of action for insufficiency and to strike the demand for attorney's fees. Before that Defendant next moved for a direction that plaintiff, pendente lite, pay use and occupancy, without prejudice, and for a dismissal of each cause of action of the amended complaint for insufficiency and of the first two causes on the claim that the new Loft Law is unconstitutional. The order to show cause bringing on this motion (No. 94 of November 8, 1982) ordered plaintiff to pay use and occupancy pending determination of the motion.

motion was submitted, plaintiff served as of right an amended complaint, verified October 6, 1982. It made changes in the causes of action for damages for harassment and fraud, and it added a cause of action under Real Property Law § 234 on which to pin the claim for attorney's fees.

PROCEDURAL PROBLEMS

Defendant claims that service of an amended complaint should not circumvent the motion addressed to the sufficiency of the original complaint. Plaintiff argues that the amendment has cured the deficiencies claimed in defendant's first motion. Moreover, plaintiff suggests that defendant's second motion is mere afterthought constituting a belated attack on the first two causes of action which defendant ignored in its first motion. Since only one motion is allowed under CPLR 3211(a) (CPLR 3211[e] ), plaintiff contends that defendant's second motion is procedurally improper. Finally, neither party addresses the effect of the amendment on the already submitted motion for a preliminary injunction that had been brought under the original complaint.

For the reasons that follow, I hold that the motion for a preliminary injunction remains viable, the motion addressed to the sufficiency of the original complaint has been rendered moot, and the motion attacking the amended complaint is procedurally proper.

A motion for a preliminary injunction may be made either (1) when a defendant threatens to do an act in violation of plaintiff's rights respecting the subject of the action, or (2) in an action seeking a permanent injunction (CPLR 6301). Only in the latter situation is the plaintiff required to submit the complaint (Seplow v. Century Operating Co., 56 A.D.2d 515, 391 N.Y.S.2d 124) or at least a summons with notice stating the object of the action (Fairfield Presidential Assocs. v. Pollins, 85 A.D.2d 653, 445 N.Y.S.2d 229). Where, as here, the preliminary injunction is sought not on the basis of a cause of action for a permanent injunction, the pleading need not be annexed to the motion (7A Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 6312.05). Consequently, the amendment of that pleading during the pendency of the motion, in a manner of no consequence to the application for a preliminary injunction, can have no effect on its consideration (cf. 12 Carmody Wait 2d, Cyclopedia of New York Practice § 78:100 at p. 215).

A motion addressed to the sufficiency of an original complaint may not be circumvented by the service of an amended complaint (3 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 3025.07). The court may dismiss the original complaint if it finds the amended one sufficient or it can dismiss the motion addressed to the pleading that no longer exists (ibid.). Although Professor Siegel has expressed distaste for the latter approach (called "abatement" of the motion), he suggests that the court address the amended pleading (Siegel, Practice Commentary C3211:65 to 7B McKinney's Cons.Laws of N.Y., CPLR 3211). This approach is especially appropriate where defendant has obliged with a second 3211(a)(7) motion attacking the amended complaint. And, the single-motion rule of CPLR 3211(e) is not offended where, as here, the second motion raises the ground of CPLR 3211(a)(7), because a motion on this ground may be made at any time (Siegel, supra, at C3211:55).

LOFT LAW

Among the vexing problems of our dynamic urban condition in New York City has been the non-juris status of the leasehold interest exemplified by the controversy The Legislature enacted Chapter 889 L. 1980 as an emergency measure. To afford the opportunity for a longer range adjustment between owners and tenants and subject to a minimum level of safety, this legislation created a moratorium on eviction until its expiration on June 30, 1981. (See 2 McKinney's Session Laws of New York, 1981, pp. 2374-5.) A more enduring enactment in Ch. 349 L. 1982 ("the Loft Law") did not become effective until June 21, 1982. ² This affords protection to residents of so called "interim multiple dwellings". This term is defined, as pertinent hereto, as a building previously used for commercial or manufacturing purposes that was occupied since April 1, 1980 and on December 1, 1981 as the residences of three or more families. The building must be in an area that is zoned residential or, by minor modification or administrative certification, that will permit residential use. (Multiple Dwelling Law § 281[2].) ³

                at bar.  Tenants have been eager to take advantage of the hitherto cheap availability of loft space for commercial and residential purposes.  Landlords, perhaps competing in a declining market for commercial and manufacturing space, have been willing to conspire 1 with tenants to satisfy the needs of both--but "outside the pale of the law."  (Corris v. 129 Front Co., 85 A.D.2d 176, 179, 447 N.Y.S.2d 480).   Tenants would rent raw space and invest significant sums in fixtures, such as bathrooms and kitchens, to make the space livable, or purchase these emoluments from prior tenants.  Yet, these arrangements offended the public interest in safety, health, zoning and commerce.  Since commercial and manufacturing premises are not compatible with residential needs, and as demands shifted from commercial to residential space, numerous tensions arose between lessors and lessees under these arrangements.  Services required for living, such as elevators, electricity, heat and fire prevention became the focal point for litigation
                

The second cause of action of the verified amended complaint adequately pleads the application of this Loft Law to the demised premises. Defendant is in error when it argues that only artists certified by the City Department of Cultural Affairs under § 276 Multiple Dwelling Law are entitled to the benefit of the new Loft Law. This was rejected in Pilgreen and Callis, supra, the Appellate Division noting that the tenants there, like plaintiff at bar, were photographers not certified as artists. Defendant finds further fault with the second cause of action in that plaintiff has not established that three families lived in the building during the relevant period and that residential use could be permitted by administrative certification. These matters present questions of fact and cannot be resolved on the face of the pleading. Defendant can derive no comfort from Justice Glen's denial of the tenant's application for summary judgment on the issue of interim multiple dwelling in 129 Front Co. v. Arctander, NYLJ 10/20/82, p. 6, col. 3. She denied summary judgment without prejudice to renewal; she did not dismiss the tenant's claim that the building was an interim multiple dwelling.

CONSTITUTIONALITY OF THE LOFT LAW

Defendant argues that the Loft Law is unconstitutional "since it denies the landlord "The scenario played out in this action is one which, by now, has become all too familiar to the courts. The tenant commences an action seeking a declaration that the building in which he is a tenant is an interim multiple dwelling. He couples his action with an order to show...