Constructive Eviction | Summary Judgment in Lieu of Complaint | Off-Campus College Housing

Original Content

Tenant Fails to Establish Breach of Covenant of Quiet Enjoyment in Nonpayment

Tenant Fails to Establish Breach of Covenant of Quiet Enjoyment in Nonpayment

In Cent. Blvd. Bldg. Corp. v. Purville, a landlord sought to evict its commercial tenant in a nonpayment summary proceeding, alleging she owed outstanding arrears for three months’ rent, late charges, and a water bill. The tenant answered the petition raising various affirmative defenses and asserting a counterclaim alleging that there had been a breach of the covenant of quiet enjoyment by the landlord constituting a partial eviction and demanding a rent abatement.

At the trial, the tenant stated that she works well into the evening at her hair salon. From 2010 through 2014 everything was fine until a gun range opened in the basement of the building in 2014. The tenant alleged to have had numerous conversations with the landlord about problems of “noise and shaking,” and introduced two letters she sent concerning the problems. The tenant also played a tape recording which lasted 35 seconds in which six gun “pops” were heard in the background. The tenant stated that after the complaints, she nevertheless renewed the lease and stayed at the premises because the landlord said it would fix the problem and she had already invested a lot in the development of her business.

The landlord had the gun range manager testify. The manager stated, and the landlord agreed, that in 2010 when the tenant moved into the premises she knew that eventually a gun range was going to be re-installed in the building; it was originally chartered in 1935.

The landlord testified that the range is open on Saturdays and Sundays from 11:00 am to 6:00 p.m. It is closed on Mondays. On Tuesday, Wednesday and Friday it is open from 12:00 p.m. to 9:00 p.m. and on Thursday from 12 p.m. to 5:00 p.m. The landlord also testified that it arranged for large caliber shooting to be done when the tenant was closed or late at night, and installed sound proof ceiling tiles and foam insulation. The landlord was about to put in a sub-floor in the hope of abating any noise when the tenant stopped paying rent.

The lease contains a typical provision which waives the tenant’s right to assert a counterclaim in a summary proceeding stating: “It is further mutually agreed that in the event Landlord commences any summary proceeding, Tenant will not interpose any counterclaim of whatever nature or description in any such proceeding.”

The court noted that such a provision in commercial landlord-tenant summary proceedings is generally enforceable, the exception being if a counterclaim was “inextricably intertwined” with petitioner’s claim so that a joint resolution of claims would expedite disposition of the entire controversy. The court noted the “principal example of a counterclaim within such exception in a commercial nonpayment proceeding is a respondent’s counterclaim based on actual or constructive eviction, to offset the obligation to pay rent, because such claim is inextricably intertwined with nonpayment of rent.” “To establish constructive eviction, a tenant need not prove physical expulsion, but must prove that the landlord’s wrongful acts substantially and materially deprive the tenant of the beneficial use and enjoyment of the premises. The tenant, however, must abandon possession in order to claim that there was an eviction. A constructive eviction may be partial rather than total, in which case the tenant must have abandoned only the portion of the premises affected.”

The court found the tenant failed to establish a breach of the covenant of quiet enjoyment constituting partial actual or constructive eviction as there was no claim that the tenant abandoned at least a portion of the premises, and she renewed her lease even after the gun range was re-installed in the basement. Thus, the landlord was granted a judgment and warrant of eviction.

Invoice Did Not Qualify as Instrument for Payment of Money Only

Invoice Did Not Qualify as Instrument for Payment of Money Only

The civil procedural rules in New York recognize that some claims have greater presumptive merit than others, and should have easier access to resolution than an ordinary action gets. New York singles out these claims and permits them to be brought on by an initial summary judgment motion instead of the usual complaint accompanying the summons. This is more commonly known as a “motion for summary judgment in lieu of complaint.” Instead of having the defendant answer the complaint in the normal course, the motion papers pick out a specific return date and require the defendant to answer the motion and argue why judgment should not be immediately granted. In addition to eliminating the requirement of answering a complaint, this procedure also sidesteps what is often a long, expensive, and somewhat tortuous discovery process.

The type of claims which may benefit from this expedited treatment are those based on “an instrument for the payment of money only” or based upon “any judgment.”

In Henry Quentzel Plumbing Supply Co. v. Riggs Plumbing & Heating at 58th Inc., it was alleged that the plaintiff sold over $58,000 of plumbing supplies to the defendant, and was never paid. Thus, the plaintiff moved for summary judgment in lieu of complaint. The court stated while plaintiff may have a plenary cause of action for an account stated based on numerous invoices and a statement issued to defendant over the period from May to December 2018, it could not do so by this “expedited procedural vehicle of summary judgment in lieu of complaint” as it is reserved for “an instrument for the payment of money only.”

The Court found the invoice-referencing statement of account did not qualify as an instrument for the payment of money only and, therefore, denied the plaintiff’s motion. It noted that the “prototypical example of an instrument within the ambit of the statute is of course a negotiable instrument for the payment of money — an unconditional promise to pay a sum certain, signed by the maker and due on demand or at a definite time.”

All was not lost for the plaintiff, because upon denial the Court converted the matter to a plenary action, and directed the plaintiff “to serve a regular complaint on the defendants.”

College Did Not Assume Duty to Ensure Safety of Off-Campus Housing Listed on Its Website

College Did Not Assume Duty to Ensure Safety of Off-Campus Housing Listed on Its Website

In Fitzsimons v. Brennan, various estate administrators brought wrongful death actions against Marist College and off-campus landlords following students’ deaths in a fire in the landlords’ house. The Supreme Court, Suffolk County, granted the college’s motion for summary judgment, in consolidated cases and the administrators appealed. The Supreme Court, Appellate Division, held that the College did not owe a duty of care to students to ensure off-campus housing listed on the College’s website complied with all relevant fire safety standards, and the College did not assume a duty to ensure that off-campus housing listed on its website was safe for its students to live in. The Supreme Court’s dismissal of the consolidated cases was affirmed.

According to the decision, Kerry Fitzsimons and Eva Ryan Block were students at Marist College. During the 2011–2012 school year, they lived in an off-campus house owned by the defendants Kevin Brennan and Kristine Brennan. Marist College made available to its students a list of off-campus housing, which included the Brennan house.

On January 21, 2012, Kerry and Eva, and a third person died in a fire in the Brennans’ house. The administrators of Kerry’s estate and of Eva’s estate, each commenced a separate wrongful death action, also against the Brennans and Marist College. The Supreme Court consolidated the two actions.

On appeal, the Appellate Court stated that the “‘threshold question in any negligence action is: does defendant owe a legally recognized duty of care to plaintiff?’ In the context of this action, a critical consideration in determining whether such a duty exists is whether Marist College’s relationship with either the Brennans or Kerry and Eva placed the college in the best position to protect against the risk of harm. Also relevant is the principle that ‘one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully.’”

The Appellate Court concluded that under the circumstances of this case, “we agree with the Supreme Court’s determination that Marist College did not owe a duty of care to Kerry and Eva. Contrary to the plaintiffs’ argument, Marist College demonstrated, prima facie, that it did not owe a duty to ensure that the off-campus housing listed on its website, which included the Brennan house, complied with all relevant fire safety standards. Even if, in theory, Marist College could have refused to list landlords on its website unless each landlord’s off-campus housing met all relevant fire safety laws and regulations, imposing such a requirement on the college is simply not warranted because the college is not ‘in the best position to protect against the risk of harm.’ In this regard, it bears recalling that the doctrine of in loco parentis has no application at the college level. Adult students who chose to live off campus, as well as the private landlords with whom they enter into a contractual relationship, are in the best position to ensure that off-campus apartments and houses have the required number of smoke detectors and other fire safety features. While the risk of fire is all too foreseeable—often with tragic consequences, as this case demonstrates—‘foreseeability, alone, does not define duty—it merely determines the scope of the duty once it is determined to exist.’”

“Moreover, Marist College also demonstrated, prima facie, that it did not assume a duty to ensure that the Brennan house was safe for Kerry and Eva to live in, as the college did not engage in any conduct that may have induced Kerry and Eva to forgo some opportunity to avoid risk, thereby placing them ‘in a more vulnerable position than they would have been in had Marist College done nothing.’ In fact, the evidence shows, among other things, that Kerry and Eva found the Brennan house because they knew some of the students who had been renting it.”

This newsletter is provided by Hamburger, Maxson, Yaffe & McNally LLP to keep its clients, prospective clients, and other interested parties informed of current legal developments that may affect or otherwise be of interest to them, and to learn more about our firm, our services and the experiences of our attorneys. The information is not intended as legal advice or legal opinion and should not be construed as such

Original Content