BACKGROUND This summary holdover proceeding was commenced by 1606 First Realty LLC (Petitioner) against Baltimore Restaurant Inc d/b/a Sumela Mediterranean Café & Grill (Respondent) seeking to recover possession of Store #1 at 1606 First Avenue, New York, New York 10028 (Subject Premises) based on the allegation that Respondent has breached its obligations under the lease by using the basement of the Subject Building and damaging Petitioner’s property.The main issue at trial is whether Respondent has the right to use the sidewalk hatch door leading to the basement.PROCEDURAL HISTORYPetitioner issued a fifteen day notice to cure dated August 13, 2018. The notice provides in pertinent part:Tenant has caused and continues to attempt to utilize the sidewalk access door to the basement off the Premises, notwithstanding that the sidewalk basement door and area is not a portion of the Premises demised to Tenant under the terms of the Lease. On several occasions, Tenant has damaged and vandalized Landlord’s property, specifically locks and other security devises in order to utilize the sidewalk entrance door and Tenant continues to do so notwithstanding specific instructions from the Landlord in this regard. These acts constitute a violation of Article 4 (Repairs) in that Tenant is failing and refusing to take good care of the Premises (Article 14 (Vault, Vault Space Area)1, Rider Paragraph 55 (Limitation on Use), and Rider Paragraph 61 (Installation in Demised Premises).PLEASE TAKE FURTHER NOTICE that Tenant is required to immediately cease utilizing the sidewalk door entrance to the basement and its vandalism and destruction of Landlord’s property, including locks and security devices.Petitioner issued a notice of termination dated October 18, 2018, terminating Respondent’s tenancy as of October 31, 2018.The petition was filed on November 8, 2018, proof of service was filed on November 14, 2018. The initial court day was on November 20, 2018.Respondent appeared by counsel, and filed an answer asserting the affirmative defense of appurtenance and that the use of the sidewalk hatch door leading to the basement was necessary for the operation of Respondent’s business.The proceeding was adjourned over a number of different dates.On February 27, 2019, the proceeding was assigned to Part 118 for trial. The trial commenced and concluded on that date, and the court reserved decision.FINDINGS OF FACTPetitioner is the owner of the building located at 1606 First Avenue, New York, New York, pursuant to a deed dated July 27, 2006 (Ex 2). Respondent is the tenant of record of the Subject Premises pursuant to a lease dated June 21, 2016 (Ex 1).The lease is for a ten year term through June 2026. The Subject Premises is used as a restaurant and bar. The lease only describes the Subject Premises as Store #1. There is also a diagram of the Subject Premises which depicts the first floor and a greenhouse area.The certificate of occupancy for building (Ex A) provides that the first floor is to be used as a drinking and eating establishment and that the cellar is to be used for a boiler room and restaurant storage area.The lease makes no reference to the basement being a part of the Subject Premises.Both parties agree that a portion of the basement is included as part of the Subject Premises.This dispute arises regarding a sidewalk door hatch that leads to another portion of the basement. Ishmael Yasiltas (IY) is the current owner of Respondent.IY bought the restaurant from the prior owner, after the commencement of the lease and in June of 2017. IY was provided with three keys at the time of purchase from the prior owner, these were the key to the front door, the key to the sidewalk hatch and the key to the back door of the restaurant. There is also a door in the basement that divides it into two parts that door was not locked.IY credibly testified that from the time of the purchase of the restaurant forward, Respondent has used the sidewalk hatch door for deliveries and to clean out the grease trap and oil that collects from cooking. IY testified that the grease trap has to be cleaned about once a month and that deliveries are received on average two or three times per week.IY credibly testified that the Super of the building, was well aware of this use through personal observations.Approximately six months after IY purchased the restaurant and opened for business, the Super told an employee that Petitioner no longer wanted Respondent to use the sidewalk hatch and asked for the key back. The Super agreed to provide access by appearing personally when Respondent needed to make use of the sidewalk hatch. Respondent returned the keys and for a while access was provided by the Super on request.However, the Super only works at the building some mornings and is otherwise employed caring for four other residential buildings for Petitioner. Respondent would often require access to the sidewalk hatch and call the Super but receive no response. Respondent then broke the padlock lock on the hatch door put a new padlock on the hatch door and provided the keys for the new lock to the Super. The parties took turns changing the locks on 2-3 occasions.Petitioner issued the notice to cure. Respondent stopped changing the lock, but then a few months later changed the lock again and Petitioner issued the notice of termination herein.DISCUSSIONPetitioner alleges in this proceeding that Respondent has violated three provisions of the parties’ lease, articles 4, 55, and 61.Article 4 of the lease is titled Repairs and provides in pertinent part:Tenant shall… take good care of the demised premises and the fixtures and appurtenances therein, and the sidewalks adjacent thereto, and at its sole cost and expense, make all non-structural repairs thereto as and when needed to preserve them in good working order and conditionArticle 55 is titled Limitations on Use and provides that Respondent understands and agrees that its business activity is confined to the Premises leased herein.Article 66 of the rider is titled Installation in Demised Premises and provides that all of Respondent’s equipment, including without limitation, heating, ventilating and air conditioning systems shall be installed with in the Premises only.The court does not find that Petitioner established a material or substantial default of any of these three provisions. There was no evidence of breach by Respondent in its obligations to maintain the premises in good repair, and no evidence of any outside installation as referenced by Article 66. Nor does the court find that Respondent’s use of the sidewalk hatch constituted the conduct of business beyond the demised premises.The court finds that Respondent has shown that it is entitled to use the sidewalk hatch as an appurtenance.Under a lease, the tenant acquires not only rights to the premises specifically leased, but also rights outside the demised premises that pass to the tenant whether or not mentioned Rights of the latter kind are known as appurtenances and are generally defined as incorporeal easements or rights and privileges which are essential or reasonably necessary to the full beneficial use and enjoyment of the property conveyed or leased. Second on Second Cafe, Inc. v. Hing Sing Trading, Inc., 66 AD3d 255, 267(2009)(citations omitted).The court finds that a preponderance of credible evidence at trial established that the sidewalk hatch to the basement is a necessary appurtenance to Respondent’s leasehold [23 E. 10 L.L.C. v. Albert Apartment Corp., 91 AD3d 573, 574 (2012)].It is undisputed that there is no other way for the restaurant to clean out the grease traps and that access through the sidewalk hatch is necessary for that purpose.The court further credits the Respondent’s testimony that there is no other practical way for food deliveries to come through to the kitchen. For example, the restaurant only serves Halal Meat which is delivered at 5pm, an hour when large boxes could not be brought through the main restaurant entrance as the restaurant is open for business.Petitioner has no other use for the space. Petitioner’s concern that some problem from the use might arise in the future because of electrical meters and boilers in the basement does not warrant a different outcome.Both parties should have a key to the lock to the sidewalk hatch. Petitioner had no right to unilaterally expel or exclude Respondent from continued use of the sidewalk hatch, and it is undisputed that anytime Petitioner locked Respondent out from this space by changing the lock, Petitioner did not provide Respondent with a key. In fact such an expulsion could constitute an actual partial eviction (Second on Second Café v. Hing Sing Trading at 268). Petitioner conceded that when Respondent changed the lock, it always provided Petitioner with a key.As the court finds that Petitioner has failed to prove that Respondent breached its obligations under the lease, the petition is dismissed.This constitutes the decision and order of this Court.Dated: February 28, 2019New York, New York
