| 23 E. 10 L.L.C. v Albert Apt. Corp. |
| 2012 NY Slip Op 00640 [91 AD3d 573] |
| Jnury 31, 2012 |
| Appellate Division, First Department |
| 23 East 10 L.L.C., Formerly Known as Corbo Company, et al.,Respondents, v Albert Apartment Corp., Appellant. |
—[*1] Moses & Singer LLP, New York (Jay R. Fialkoff of counsel), for respondents.
Order and judgment (one paper), Supreme Court, New York County (Joan A. Madden, J.),entered October 25, 2010, which, to the extent appealed from as limited by the briefs, denieddefendant-landlord's motion for summary judgment dismissing plaintiffs' second cause of actionfor declaratory and injunctive relief, granted the cross motion of plaintiff-tenant andplaintiff-subtenant for summary judgment as to their second cause of action, and adjudged anddeclared that the sidewalk entrance, vault space and basement corridors constituted anappurtenance, and that plaintiffs could resume usage of these areas, enjoined the landlord frominterfering with plaintiffs' right to use and access the sidewalk entrance, vault space andbasement corridors, and directed the landlord to provide plaintiff-tenant with keys to thesidewalk entrance to the basement of the building, unanimously modified, on the law, to theextent of granting, upon a search of the record, the landlord summary judgment dismissing, asmoot, the sixth cause of action, for reformation of the parties' proprietary lease, and otherwiseaffirmed, with costs to be paid by defendant.
The landlord's argument that the sidewalk hatch that accesses the basement portion of thepremises is a "mere convenience" and is "not essential" to its use as a restaurant is unavailing. Asthe motion court found, uncontroverted deposition testimony from the subtenant pizzeria's ownerestablished that the daily use by the pizzeria of the hatch entrance for deliveries and garbageremoval, and the added expense incurred by the pizzeria for extra worker hours needed due to theimpractical and inconvenient use of the pizzeria's internal stairwell for all restaurant functions,established that the sidewalk access hatch to the basement, where the premises' kitchen andstorage area is located, was a necessary appurtenance to the leasehold (see Second on Second CafÉ, Inc. vHing Sing Trading, Inc., 66 AD3d 255, 267 [2009]). The landlord's further argument,that plaintiffs should be bound by their own unilateral mistake for not incorporating the hatch-uselanguage from the 1994 modified commercial lease into the new proprietary lease, is unavailing.As the motion court appropriately found, the parties previously agreed to plaintiffs' use of thesidewalk hatch access and, unless specially reserved, the appurtenant right passes to the tenantalong with the demised premises (see Fabrycky, Inc. v Nad Realty Corp., 261 App Div268, 269 [1941]). Further, plaintiffs continued to use the sidewalk hatch access for more than ayear after the proprietary lease was executed, without interference from the landlord. [*2]Additionally, inasmuch as the premises was subleased continuouslyas a restaurant since the initial 1995 sublease was entered into, everything that was necessary tothe use and enjoyment of the demised premises, and which had enabled the pizzeria to reasonablyfunction, must be implied where it is not expressed in the lease (see Second on SecondCafÉ, Inc., 66 AD3d at 256). Concur—Tom, J.P., Friedman, DeGrasse, Richterand Manzanet-Daniels, JJ. [Prior Case History: 2010 NY Slip Op 32970(U).]