Vesey Realty Co. v. Doherty

• Decision Date: 20 July 1983
• Citation: 120 Misc.2d 721,466 N.Y.S.2d 559
• Parties: VESEY REALTY COMPANY, Petitioner-Landlord, v. Arthur DOHERTY, Respondent-Tenant, "John Doe," Respondent-Undertenant.
• Court: New York City Court

Page 559

466 N.Y.S.2d 559

120 Misc.2d 721

VESEY REALTY COMPANY, Petitioner-Landlord, v. Arthur DOHERTY, Respondent-Tenant "John Doe," Respondent-Undertenant.

Civil Court of the City of New York New York County, Part 49.

July 20, 1983.

Stanley Seitel, New York City, for petitioner-landlord.

Bernard C. Durham, Legal Aid Society, New York City (Marcy Friedman, Legal Aid Society, New York City, of counsel) for respondent-tenant.

DECISION

LEWIS R. FRIEDMAN, Judge.

Petitioner in this holdover proceeding presents a novel argument: does the tenant's commission of a crime against the landlord authorize termination of his lease without the service of the notice to cure which is otherwise required by the lease.

The credible proof at the trial of this case established that the landlord, on January 18, 1983, while walking in the hallway of the building, found that an electric wire which was plugged into a hallway lighting fixture led under the door of the tenant's apartment. The owner cut the wire. Consolidated Edison testified, by stipulation, that the tenant's meter had been removed and that no electric service was provided to the tenant from February 26, 1982 to April 28, 1983. At the end of January 1983, the hallway fixtures were changed so that they do not contain electric outlets. The landlord served a notice of termination of the lease on January 19th, the day after he discovered the "cheater" wire. This proceeding then followed.

The landlord argues that the tenant committed a crime by stealing electricity from the building. Section 155.05(1) of the Penal Law, provides, in pertinent part:

A person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof.

Section 155.00(1) defines property as:

Any money, personal property, real property, thing in action, evidence of debt or contract, or any article, substance or thing of value, including any gas, steam, water or electricity, which is provided for a charge or compensation.

The italicized language was added in 1978 (L.1978 ch. 420 § 3) in an attempt to cover conduct such as involved here, which may not have previously been covered by the larceny provisions of the Penal Law.

Petitioner's proof in this proceeding is sufficient to establish a violation of that section. The tenant argues that there was no proof that there was any electric actually being drawn through the wire at the time it was cut. The electric company's proof, and the inferences which the court draws from it, are sufficient in this proceeding, even if not in a criminal prosecution, to establish a violation of the Penal Law. That conclusion is bolstered by the tenant's testimony. The tenant, who testified in his own behalf, relied upon his federal Fifth Amendment rights in refusing to answer any questions concerning his electric service or the source of electricity in the apartment. The court is authorized to draw an inference of guilt, in this civil proceeding, from the claim of privilege. Marine Midland Bank v. Russo, 50 N.Y.2d 31, 427 N.Y.S.2d 961, 405 N.E.2d 205 (1980), Eastern Airlines v. Stuhl, 65 Misc.2d 901, 318 N.Y.S.2d 996 (Civ.Ct.N.Y.1970), In Re Weaver's Estate, 58 Misc.2d 901, 297 N.Y.S.2d 201 (Sur.Ct.Albany Co., 1969), Bradley v. O'Hare, 2 A.D.2d 436, 156 N.Y.S.2d 533 (1st Dept.1956). Such an inference is warranted here.

The commission of a crime against the landlord which grows out of the landlord-tenant relationship is a violation of paragraph 7 of the lease which provides "tenant ... shall at all times act in conformity with all present and future laws, orders and regulations of all federal, state, municipal and local governments." Paragraph 17 of the lease, however, provides:

"(1) If Tenant defaults in fulfilling any of the covenants of this lease other than the covenants for the payment of rent or additional rent; ... then, in any one or more of such events, upon Landlord serving a written five (5) days notice upon Tenant specifying the nature of said default and upon the expiration of said five (5) days, if Tenant shall have failed to comply with or remedy such default ... then Landlord may serve a written three days' notice of cancellation of this lease upon Tenant, and upon the expiration of said three (3) days, this lease and the term thereunder shall end and expire ... and Tenant shall then quit and surrender the demised premises to Landlord but Tenant shall remain liable as hereinafter provided.

The landlord here short-circuited that provision and served the notice to terminate immediately. There is however no reason for failing to follow the lease.

Generally speaking the law permits termination of a lease...