Two Guys From Harrison-N.Y., Inc. v. S.F.R. Realty Associates

• Citation: 99 A.D.2d 467,470 N.Y.S.2d 46
• Decision Date: 03 January 1984
• Docket Number: S.F.R,HARRISON-N
• Parties: TWO GUYS FROMY., INC., Respondent, v.REALTY ASSOCIATES et al., Appellants; Grace Retail Corporation et al., Additional Defendants on Counterclaims.
• Court: New York Supreme Court Appellate Division

Page 46

470 N.Y.S.2d 46

99 A.D.2d 467

TWO GUYS FROM HARRISON-N.Y., INC., Respondent, v. S.F.R. REALTY ASSOCIATES et al., Appellants;

Grace Retail Corporation et al., Additional Defendants on

Counterclaims.

Supreme Court, Appellate Division,

Second Department.

Jan. 3, 1984.

Carb, Luria, Glassner, Cook & Kufeld, New York City (M. William Scherer, New York City, of counsel), for appellants S.F.R. Realty Associates.

Holman & Rosenberg, Roslyn Heights (Gary Holman, Roslyn Heights, of counsel), for appellants, except S.F.R. Realty Associates (relying on the brief submitted by S.F.R. Realty).

Finley, Kumble, Wagner, Heine, Underberg, Manley & Casey, New York City (Donald S. Snider and Gerald M. Levine, New York City, of counsel), for respondent.

Before MANGANO, J.P., and O'CONNOR, WEINSTEIN and BROWN, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to declare that tenant Two Guys from Harrison-N.Y., Inc. (Two Guys) is entitled to make certain alterations to a leasehold pursuant to RPAPL 803, landlord S.F.R. Realty Associates et al. (S.F.R.) appeal, as limited by S.F.R.'s brief, from so much of a judgment of the Supreme Court, Nassau County, entered January 10, 1983, as declared, after a nonjury trial, that Two Guys was entitled to proceed with the proposed alterations subject only to furnishing security as provided in RPAPL 803.

Judgment reversed, on the law and the facts, without costs or disbursements, it is declared that Two Guys from Harrison-N.Y., Inc. is not entitled to make certain alterations to a leasehold pursuant to RPAPL 803 and petition otherwise dismissed.

The purpose of section 537 of the Real Property Law, enacted in 1937 and recodified in RPAPL 803, was to "liberaliz[e] the law of waste in its application to alteration or construction of buildings" and to permit certain alterations to a leasehold heretofore forbidden by the law of waste (see Report of the Law Revision Commission, Legislative Document [1935] No. 60, pp. 349-350; Law Revision Commission Recommendations and Studies, Legislative Document [1935] No. 60[G] ). Nonetheless, to invoke the benefits of the statute (and its modern successor), a person "having an estate for life or for years in land" is required to establish, inter alia, that "the proposed alteration * * * is not in violation of the terms of any agreement * * * regulating the conduct of the owner of the estate for life or for years or restricting the land in question" (Real Property Law, former § 537,...