| Prospect Owners Corp. v Sandmeyer |
| 2009 NY Slip Op 04126 [62 AD3d 601] |
| May 26, 2009 |
| Appellate Division, First Department |
| Prospect Owners Corp., Respondent, v Gloria Sandmeyeret al., Appellants. |
—[*1] Ingram Yuzek Gainen Carroll & Bertolotti, LLP, New York (Cory L. Weiss of counsel), forrespondent.
Order, Supreme Court, New York County (Edward H. Lehner, J.), entered December 26,2007, which, inter alia, after a nonjury trial, declared that defendants' use of the south side of thelower roof of the building in which they are tenants was pursuant to a revocable license,unanimously affirmed, without costs.
The trial court correctly found that defendants' right to the use of the roof space adjacent tothe 22nd floor portion of their duplex apartment (the south roof) was not, as they contend,governed by their lease, which did not include the south roof in the demised premises, but waspursuant to a license. "Whereas a license connotes use or occupancy of the grantor's premises, alease grants exclusive possession of designated space to a tenant, subject to rights specificallyreserved by the lessor" (American Jewish Theatre v Roundabout Theatre Co., 203 AD2d155, 156 [1994]). The trial evidence established that defendants' use of the south roof has notbeen exclusive. Plaintiff, through its agents, has had access to the south roof throughout the yearsto perform routine maintenance, make roof repairs, gain access to elevator shafts, clean drains,and repair, paint, and maintain the "Tudor City" sign located on the roof. Similarly, therestaurant located on the ground floor of the building has had regular access to the area of thesouth roof in which its machinery is stored. Both enter the south roof space without defendants'consent. While plaintiff indeed permitted defendants to use the space, its acquiescence did notcreate a right in them (see Ancess v Trebuhs Realty Co., 18 AD2d 118, 119 [1963],affd 16 NY2d 1031 [1965]) but was revocable at will (see Jossel v Filicori, 235AD2d 205, 206 [1997]; American Jewish Theatre, 203 AD2d at 156; Matter ofRealty Trade Corp. v City Rent & Rehabilitation Admin., 52 Misc 2d 318 [1966]).
Defendants contend that extrinsic evidence of a 48-year course of conduct, including theiruse of the south roof to the exclusion of all other tenants for a variety of uses continuouslythroughout that period, plaintiff's failure ever to expressly tell them not to use the space and itsalleged acknowledgment and implicit approval of their use thereof, establishes that the partiesintended that the demised premises include the south roof from the inception of the lease.However, since the lease and the renewal leases make no reference to defendants' right to usethat space, there is no ambiguity as to whether the space is included in the leased premises(Matter of Davis v Dinkins, 206 AD2d 365, 366-367 [1994], lv denied 85 NY2d804 [1995]), and extrinsic evidence may not be considered (South Rd. Assoc., LLC v International Bus. Machs. Corp., 4 NY3d272, 278 [2005]; see also VermontTeddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470, 475 [2004]). In any event,given the evidence that the only direct access to the south roof from the apartment is through awindow, while the upper terrace is accessible through a door and is undisputedly part of theleased premises, that the co-op conversion offering plan made no reference to the south roof inconnection with defendants' apartment, while the upper terrace was expressly included in theshares allotted to that apartment, and that the corresponding roof area that abuts the apartment onthe north end of the building is undisputedly a public area, the only reasonable conclusion is thatthe parties did not intend the south roof to be included in the leased premises.
The south roof is not an appurtenance to defendants' apartment that may be revoked only atthe termination of the lease, since its use is neither essential nor reasonably necessary todefendants' full beneficial use and enjoyment of the apartment (see Blenheim LLC v Il Posto LLC, 14Misc 3d 735, 740 [2006], citing 1 Dolan, Rasch's Landlord and Tenant—SummaryProceedings § 7:5 [4th ed]). Defendants use the south roof primarily for recreational andstorage purposes, for which there exist alternative premises (see id. at 741; Oberfestv 300 W. End Ave. Assoc., 34 Misc 2d 963, 965 [1962]; Mammy's Inc. & Pappy's Inc. vAll Continent Corp., 106 NYS2d 635 [1951]).
Nor have defendants acquired the right to exclusive use of the south roof through adversepossession, since they have had an ongoing landlord-tenant relationship with plaintiff or itspredecessors since 1952 (see RPAPL 531; CPLR 212 [a]; Ley v Innis, 149 AD2d366 [1989], lv dismissed 74 NY2d 841 [1989]). In any event, it was established thatdefendants' possession of the south roof has not been exclusive, and the evidence on whichdefendants rely to support their argument that plaintiff acquiesced in their use and possession ofthe south roof defeats any claim that their possession was hostile, adverse, or under a claim ofright (see Ray v Beacon Hudson Mtn. Corp., 88 NY2d 154, 159 [1996]; 10 E. 70thSt. v Gimbel, 309 AD2d 644, 645 [2003]).
Finally, we note that, to the extent defendants seek to claim a rent reduction based onplaintiff's failure to maintain the south roof as a "required service" under their lease (seeRent Stabilization Code [9 NYCRR] § 2520.6 [r] [3]; § 2523.4 [a] [1]; [e] [19]), theproper forum for such a claim in the first instance is the Division of Housing and CommunityRenewal (see e.g. Meirowitz v NewYork State Div. of Hous. & Community Renewal, 28 AD3d 350 [2006], lvdenied 7 NY3d 718 [2006]; Matterof Llorente v New York State Div. of Hous. & Community Renewal, 16 AD3d 105[2005]).
We have considered defendants' remaining contentions and find them unavailing.Concur—Catterson, J.P., McGuire, Moskowitz, DeGrasse and Freedman, JJ.