Landlord-Tenant—Nuisance—Tenant Had Long History of Making Complaints and Preventing Owner From Making Repairs – Notice to Cure Not Required Where It Would Have Been A Futile Act

A tenant appealed from a final judgment which awarded a landlord possession in a holdover summary proceeding and denied the tenant a further stay of a warrant of eviction. The landlord cross-appealed from the final judgment which provided the tenant with “a post-judgment opportunity to cure.”

The Appellate Term (court) held that the record supported the trial court's determination that the tenant had “committed a nuisance…by filing repeatedly complaints against landlord concerning conditions” in the apartment resulting in the placement of violations, and then consistently refusing to allow the landlord to make the necessary repairs. The trial court had found that the tenant's refusal to permit the repairs was “not based on any repair standards, but 'upon a visceral distrust of landlord.'”

The underlying conditions, which required repair, included “the removal (by tenant) of carbon monoxide/smoke detectors and window guards, and the presence of vermin and lead paint.” The trial court found that those conditions “threaten the health and safety of others in the building” and the “tenant's ongoing, continuing interference with, or refusal to allow, landlord to cure the violations constituted a nuisance….”

The court affirmed such finding, and held that the tenant “was not entitled to a further opportunity to cure, since her conduct occurred over a substantial period, had not abated although she had been given ample opportunities during the protracted proceedings below, and tenant's pattern of behavior shows no sign of abating….” The court noted that the tenant's interference with the landlord's efforts to make repairs was “long-standing, as is evident by the length of this 2011 proceeding and the parties' 2007 stipulation.”

The court held that a notice to cure was not required, since the proceeding was based on the theory of nuisance and not breach of the lease. The court explained that although the lease required “a notice to cure where objectionable conduct is alleged, any noncompliance with this requirement, to the extent applicable, is not fatal to its holdover petition, given that the cumulative pattern of tenant's course of conduct that continued over a period of years is incapable of any meaningful cure….” The court further observed that because “a lease provides time for a cure does not necessarily imply that a means or method to cure must exist in every case….”

The court concluded that “this case involves a type of default that cannot be cured within the five-day period provided in the lease” and that “[t]o insist upon the service of a formal notice to cure in such circumstances is to compel the performance of a useless and futile act.” Accordingly, the court held the notice of termination was reasonable and the tenant's appeal was rejected. Based on its conclusion, the court did not reach the issue of the landlord's cross appeal.

Strata Realty Corp. v. Pena, App. Term, First Dept., Index No. 570821/16, decided Dec. 4, 2017, Lowe, III, P.J., Schoenfeld, Shulman, JJ. All concur.

Landmarks—First Time An Owner Sought to Convert Interior Landmark Into Private Residence—Appellate Division Held That Landmark Preservation Commission's Decision Granting Owner A Certificate of Appropriateness (COA) to Convert Clock Tower Into Luxury Condominium and to Electrify Clock Was Error, to the Extent It Approved Clock's Electrification and Elimination of Public Access to the Clock Tower

This decision involved an appeal from a trial court order which granted an Article 78 petition to annul a Certificate of Appropriateness (COA), which had authorized work on certain features of a designated interior landmark. The Appellate Division (court) affirmed the trial court's decision that the Landmark Preservation Commission's (LPC) decision was based on an error law and was irrational. The court observed that “[t]his case marks the first time an owner has asked to convert an interior landmark into a private residence.” The COA, would permit the owner, who bought the property subject to the landmark designation, “to make fundamental alterations to one of the few remaining nineteenth century non-electrified mechanical clocktowers….” The COA would allow “the conversion of the space containing the clocktower into a private residence, the disconnection of the clock from its historical mechanism, and the electrification of the clock.”

The salient issues were whether and to what extent the NYC Landmarks Preservation and Historic Districts Law (Landmarks Law) “permits the LPC to require the…owner of property purchased subject to a prior interior landmark designation to preserve the historic character and operation of the interior landmark and to continue to permit at least minimal public access to it.” The subject building, designed between 1894 and 1898 by “the prominent architectural firm McKim, Mead & White,” contained “the largest of the few purely mechanical tower clocks of its kind in New York.” The only clock in the world with a comparable mechanism “is the one atop Westminster Palace known as Big Ben.”

Approximately nine months following the owner's purchase, the owner asked the LPC to grant a COA, which would have permitted the owner “to convert the clocktower into a triplex private apartment, to disconnect the clock from its mechanism, and to electrify the clock.” At an LPC public hearing, a Commissioner noted that “interior landmark designations are made 'for the public benefit, and…this [clocktower is] especially an interior that warrants that kind of public interaction' and asked whether it was feasible to make the clocktower open to the public to some degree.” The owner acknowledged that “it might be possible but it was not their intention to do so.” The LPC's counsel stated at the hearing that the LPC lacked the “'power under the Landmarks law to require interior-designated spaces to remain public' and 'to require that [the clock] mechanism remain operable.'” A community board member asserted that “the LPC's mandate is 'to keep the clock working…and a directive must be put in place and in force to keep the clock working.”

The court reviewed the hearing testimony and noted that the LPC counsel had “reiterated his opinion,” that the LPC lacked “authority to regulate the continued functioning of the clock mechanism or to require access.” LPC commissioners had expressed a preference for a requirement that the clock mechanism continued to operate, but had deferred to the LPC counsel's opinion. An LPC Commissioner had expressed concern that “the clocktower would be located within a privately owned apartment.” The court opined that, if the commissioners had “voted their preference, the application would not have passed.” Some of the commissioners had spoken “in support of some form of continued public access to the clocktower.” Although the LPC counsel advised that the LPC lacked authority “to require continued public access to an interior landmark, the COA…directed that the owner execute and record a restrictive declaration requiring that the owner provide public access to the 'main Banking Hall,' another of the building's interior landmarks, and not use it for residential purposes.”

Following the LPC's grant of the COA, the petitioners commenced the subject Article 78 proceeding. The trial court and the Appellate Division found that “the LPC's approval of the COA was affected by a mistake of law, to the extent that it approved the electrification of the clock and the elimination of public access to the clocktower” and held that the LPC's decision “lacked a rational basis for its decision on the public access issue.” Based upon the statutory purpose of the Landmarks Law, the Appellate Division held that the LPC has authority to regulate the clock mechanism.” The court noted that the Landmarks Law:

declares that “the protection, enhancement, perpetuation…of improvements…of special character or special historical or aesthetic interest or value is a public necessity and is required in the interest of the health, prosperity,…and welfare of the people”…. The purposes of the Landmarks Law include the “protection, enhancement and perpetuation of such improvements…which represent…elements of the city's cultural, social, economic, political and architectural history;…[the] foster[ing of] civic pride in the beauty and…accomplishments of the past;…protect[ing] and enhance[ing] the city's attractions to…visitors and the support and stimulus to business and industry thereby provided;…[and] promot[ing] the use of…interior landmarks…for the education, pleasure and welfare of the people of the city”…. in determining an application for permission to alter or reconstruct an interior landmark, “the commission shall consider the effects of the proposed work upon the protection, enhancement, perpetuation and use of the interior architectural features of such interior landmark which cause it to possess a special character or special historical or aesthetic interest or value”….

“The Landmarks Law defines the term 'interior architectural feature'” to encompass the “components of an interior, including, but not limited to…the type and style of all…fixtures appurtenant to such interior….” The Landmarks Law also permits the LPC “to '. . . impose, with respect to the…, reconstruction, alteration, demolition or use of [a designated landmark] or the performance of minor work thereon, regulations, limitations, determinations or conditions which are more restrictive than those prescribed or made by or pursuant to other provisions of law applicable to such activities, work or use'….” The court stated that such statutory language vests the LPC with “authority to require the owner to run the clock by its still functioning mechanism and to deny the request to electrify it.” An expert witness had testified that “disconnecting the mechanism and electrifying the…clock would be analogous to replacing the engine of a classic car with a modern engine: 'he would now have a Chevy Volt and not a 1948 Dodge.'” The court also cited testimony that “disconnecting the mechanism would, at best, place the clock mechanism at risk, and, at worst, destroy it….”

The court disagreed with the dissent's assertion that the LPC had “relied on its own interpretation of 'interior architectural features,' rather than the legal advice of its counsel.” The court believed that the record demonstrated that the LPC “relied on the erroneous legal advice of counsel.” The court reasoned that it need not defer to “the LPC's misunderstanding of its authority…, and we should not do so when that misunderstanding was so clearly contrary to what the commissioners viewed as the course most in keeping with their expert consideration of the historical and aesthetic importance of the clock and its mechanism.” The court cited the owner's architect's acknowledgment that “there was no guarantee that all of the mechanism would be preserved” and noted that “[w]hen the Landmarks Law was enacted in 1965, no one could have imagined the…technological advances in the decades to come, and the resulting vast aesthetic impact on our environment.” The court stated that “[t]his majestic clock, and its historically significant functioning mechanism, is a perfect example of the very reason the Landmarks Law exists….”

The court found that “preserving the public's access to landmarked spaces furthers the statutory purpose.” The court reasoned that “[i]t is difficult to see how an interior landmark located in a private home can foster civic pride in the city's past, educate our citizens, enhance tourism and provide the stimulus to business and industry that tourism provides.” Moreover, the Landmarks Law vested the LPC with “authority to regulate, limit or condition proposed alterations to landmarked interiors” and “the plain language of the Landmarks Law requires that, once designated, an interior landmark is and shall remain accessible by the public.”

Finally, the court rejected the argument that requiring public access to the clocktower “would constitute a 'taking.” The court held that the owner had not demonstrated that it would lose “the reasonable beneficial use” of its property, noted that Landmarks Law “serves a substantial public purpose,” and explained that “the mere diminution of property value as a result of legislation designed to protect historically significant properties does not establish a taking….” The court further stated that the owner had not “even attempted to meet its burden to show that providing some public access to the clocktower will deprive it of any beneficial use of the property….” and requiring public access to the clocktower, did not constitute a “per se physical taking.”

Additionally, the court did not believe that requiring public access would require modifications to comply with the Americans with Disabilities Act (ADA). The court noted that the ADA “only requires removal of barriers to access where 'readily achievable,'” i.e., where ADA compliance could be achieved “without much difficulty or expense.” Finally, the court noted that the owner purchased the building by a deed that provided that the purchase was “subject to the landmark designation,” i.e., the owner could not claim that there was “a 'taking' of a right that it never had….”

A dissent contended that the LPC had “acted rationally in issuing the COA.” The dissent noted that the Landmarks Law did “not explicitly state that the owner of a building containing an interior landmark is required to maintain public access to that landmark in perpetuity.” The dissent stated that “[a]lthough a space must be 'customarily open or accessible to the public, or one to which the public is customarily invited' in order to be designated as an interior landmark…, maintenance of public accessibility to an interior landmark has never been deemed an ongoing obligation of its owner.” The dissent asserted that “[i]n the 50 years since the Landmarks Law was first enacted, 'it has been the City's policy and practice that an interior landmark owner's sole obligation was to preserve its protected features of special historical or aesthetic interest or value'….” Thus, dissent asserted:

The loss of public access to the Clocktower Suite, an interior space that was never capable of being widely open to the public due to its location and other structural issues, and that is highly amenable to conversion to private use, appears to be a reasonable compromise since robust public access would, as argued by respondents, “leave little to no room for residential use of the suite and, quite possibly, a broad swath of the 14th floor,” or would otherwise create a logistical nightmare, and would make preservation of the suite's other architectural features impossible because such access would require renovations to make the space compliant with the…(ADA) and the building code.

The dissent reasoned that the Landmarks Law's lack of an express requirement to maintain public access, “indicates that the interpretation of the phrases 'is customarily open or accessible to the public' and 'to which the public is customarily invited'…as imposing post-designation public access requirements on owners is not reflective of the intent of the legislature” and that statutory language should be interpreted “according to its natural and most obvious sense, without resorting to an artificial or forced construction.”

The dissent further argued that the record provided “ample support” for the LPC determination and that “to provide the public with access to the Clocktower Suite, the owners/… of the residential unit would be required to allow…the public to traverse their private triplex residence…to reach the clocktower gallery and mechanism room.”

The dissent also stated that “access to the upper three floors of the Clocktower Suite would necessarily be limited to visitors without mobility issues unless the cast iron spiral staircase leading to the 15th and 16th floors, where the existing clock pendulum and mechanism are housed, and the ceiling hatch and ladder leading to the 17th floor, where the bell is located, were supplemented with an elevator and other means of access…, which would be installed at the risk of sacrificing the integrity of the architectural features of the Clocktower Suite.” The dissent believed that such measures would involve an investment that the owner did not agree to assume when it purchased the building and that it would also inhibit the “ability to market” a prime condominium unit. The dissent also stated that, given the small floor areas of the Clocktower Suite, only a small number of people could avail themselves of public access. Thus, the dissent reasoned that the COA would “preserve the integrity of the clocktower area while denying public access was a rational determination.”

Finally, the dissent contended that the LPC's determination was “a reasonable compromise,” given the foregoing factors and that if the LPC required public access in perpetuity, “such a requirement would raise issues under the Fifth Amendment's taking clause.”

Matter of Save America's Clocks v. City of New York, App. Div., First Dept., Index No. 101109/15, decided Nov. 30, 2017, Before: Acosta, P.J., Tom, Kapnick, Kahn, Gesmer, JJ. Opinion by Gesmer, JJ. All concur except Tom and Kahn, JJ., who dissent in an opinion by Kahn, J.

Scott E. Mollen is a partner at Herrick, Feinstein and an adjunct professor at St. John's University School of Law.