Mengoni v. Passy

(dissenting). I respectfully dissent from so much of the majority opinion as affirms the dismissal of the holdover petition. Paragraph 5 of tenant’s residential lease, projected into his statutory tenancy, provides: “Tenant shall make no changes, alterations or improvements of any kind in or to the demised premises without landlord’s prior written consent” (emphasis added). In clear violation of this express prohibition, tenant installed new cabinets and a dishwasher in the kitchen, replaced the stove and refrigerator, and, in the bathroom, replaced the vanity, sink, and cabinet mirrors. After the work, tenant provided landlord with a list of the repairs and their cost (approximately $11,000) and requested reimbursement.

The nature and extent of the physical alterations in this case, undertaken without landlord’s permission, constituted a significant violation of the “no alterations” clause (Freehold Invs. v Richstone, 34 NY2d 612; Britton v Yazicioglu, 189 AD2d 734). Indeed, the scope of the alterations in this case substantially exceeds that which was found improper in the cases cited. To portray this case as merely one of replacing appliances is to disguise what was a complete “makeover” of the kitchen and bathroom, and essentially reads the “no alterations” clause out of existence.

*501The issue is not whether tenant committed waste, but whether he violated his express covenant not to make changes “of any kind” without express permission. This he undeniably did by any fair standard. Rumiche Corp. v Eisenreich (40 NY2d 174), relied upon by Civil Court and the majority, is inapposite since that case did not proceed upon a traditional breach of lease theory, but was decided under New York City Rent, Eviction and Rehabilitation Regulations former § 52 (a) (now 9 NYCRR 2204.2 [a] [1]) requiring proof that the tenant had willfully violated a substantial obligation of the tenancy by “inflicting serious and substantial injury upon the landlord”.

Notably, the only evidence below with respect to the conditions which were allegedly in need of repair was tenant’s own testimony at trial. The record shows, however, that no written complaints were made either to the landlord or Division of Housing and Community Renewal concerning these conditions, though there was considerable correspondence in connection with tenant’s continuing dispute with respect to painting and certain leaks.* Nor were any housing violations recorded against the apartment. Tenant’s assertion of an apparent simultaneous disintegration in the items he replaced is scarcely believable, and belies his actual intent which was to remodel the kitchen and bathroom. Certainly, the installation of a dishwasher where none previously existed and which was expressly proscribed by the lease, reveals tenant’s true purpose here.

As a consequence of rent regulation, tenants such as the respondent are permitted to retain apartments at rent levels substantially below the market. In return, the rent regulations authorize landlords to obtain certain modest increases to the maximum rent where the tenant has accepted and is receiving the benefit of new equipment or services (9 NYCRR 2202.4). Tenant’s unilateral replacements and improvements within the apartment premises effectively deprived landlord of his rights under the same regulatory scheme which affords eviction protection to the tenant. The advent of rent regulation, which allows tenant to occupy a residence on East 63rd Street in Manhattan at a monthly rental of $475, has not abrogated the basic common-law principle that the right to make use of leased premises does not confer the right to make alterations which constitute acts of ownership (1 Rasch, New York Landlord and Tenant—Summary Proceedings § 15:7, at 677 [3d ed]).

*502I concur with the majority that this is not a proper case for imposing punitive damages.

The final judgment should be reversed and a possessory judgment granted in landlord’s favor, with leave to tenant to cure pursuant to RPAPL 753 (4).

Ostrau, P. J., and Freedman, J., concur; Parness, J., dissents in a separate memorandum.

*499OPINION OF THE COURT

Order and final judgment dated June 14, 1996 modified only to the extent of vacating the award of punitive damages and, as so modified, affirmed, without costs.

Respondent, a rent-controlled tenant since 1976, replaced kitchen and bathroom appliances and fixtures without landlord’s prior written consent, in violation of a lease provision projected into the statutory tenancy. There is ample record evidence to support Civil Court’s findings after trial that the original apartment fixtures had fallen into a state of total disrepair and that tenant’s repeated requests for repairs were ignored. Tenant’s testimony established that the stove was broken for two years; the refrigerator compressor had stopped working; the air conditioners no longer cooled air; and the bathroom and kitchen cabinets had rotted as a result of unrepaired leaks. At various times, tenant was advised by the building superintendent to do the work himself or was promised that the work would be performed. Written requests for painting—submitted as early as 1980 and 1984—and a written notice about leaks in 1987 were not responded to. Civil Court found tenant’s testimony that repairs were requested and refused “entirely credible”, and implicitly rejected the claims of landlord and the superintendent that no complaints had been received.*

It is apparent that in the case before us, “there was insufficient proof of any repair or alteration which could be characterized as one causing permanent or lasting injury to the premises” or proof that tenant’s improvements could not be removed at minimal expense or damage (Rumiche Corp. v Eisenreich, 40 NY2d 174, 180). In analogous circumstances, we have previously held that a tenant’s installation of new kitchen appliances (a stove, sink, cabinets, linoleum and refrigerator) in place of the old (and allegedly defective) appliances did not warrant forfeiture of a rent-regulated tenancy (Garay v Devine, NYLJ, Oct. 27, 1989, at 21, col 1 [App Term, 1st Dept]).

The cases cited in the dissent are distinguishable, in that they reflect fact patterns where the replaced fixtures were not defective (Britton v Yazicioglu, 189 AD2d 734) or where the tenant made structural changes that “could not be removed without injury to the freehold” (Freehold Invs. v Richstone, 34 NY2d 612, 613). By contrast, in the matter at hand the new *500appliances are merely substitutes for broken and dangerous ones of the same type and function, and obviously necessary to the intended use of the apartment as a residence. It need be emphasized that tenant proceeded only after his numerous requests for repairs and maintenance went unheeded. “In such circumstances, it would be unrealistic not to expect tenants themselves to provide desirable amenities which rent-controlled landlords will not furnish” (Rumiche v Eisenreich, supra, at 178-179).

In summary, the record demonstrates that tenant’s appliances and fixtures were defective and that the landlord had notice of these conditions. The bottom line is that it makes no sense to view a tenant’s replacement of broken appliances with working ones as a breach of a valid tenancy.

We modify only to the extent of vacating the trial court’s award of punitive damages. While the parties have had a somewhat acrimonious history, we do not find conduct involving such a high degree of moral turpitude or criminal indifference to civil obligations warranting imposition of a penalty (Ciraolo v Miller, 138 AD2d 443). We particularly note the absence of record housing or building code violations affecting tenant’s premises.