Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion. Papers Respondent’s Notice of Motion, Affirmation, Affirmation, Exhibits 1 Petitioner’s Affidavits in Opposition, Exhibits 2 Respondent’s Reply 3 ORDER The underlying proceeding is a holdover petitioner in which the petitioner seeks possession of this rent-stabilized subject premises based on allegations of breach of lease pursuant to 9 NYCRR 2524.2(c)(2). The petitioner’s allegation is that the respondent has illegally installed an air conditioner in their living room window, contrary to the terms of the lease. The petition alleges in paragraph 7 that the respondent has “failed to remove air conditioner from the living room window” and “failed to make payments to petitioner for damages incurred on the building facade.” Specifically, the petitioner alleges in the Notice to Cure and the Notice of Termination that the respondent has violated paragraphs 7, 8 & 10 of the lease. The respondent now moves for an Order to dismiss the petition pursuant to CPLR 3212 or 3211(a)(1) & (7), arguing that their actions do not violate the lease and that the proceeding is time-barred pursuant to CPLR 213(2) and petitioner has waived this claim. Respondent, by their attorney, argues that the Notice to Cure and the Notice of Termination are defective in that they do not cite a lease provision that prohibits the installation of a window air conditioner unit. As such, they claim there is no cause of action here because installing a window air conditioner is not a violation of the lease. They allege the respondent installed the unit upon the commencement of her tenancy in 1999. Since then, she has been removing it every winter and re-installing it every summer without any opposition or complaint from management that it was prohibited or caused any building damage. They further note that there were no window sleeves when she first moved in, and they were only installed in 2018. Despite the wall units, the respondent contends she needs one window unit to remain cool in his apartment. The petitioner opposes the motion and argues that because the respondent removes the air conditioner every winter and re-installs it every spring, it is deemed ‘newly installed’ every spring in an apparent rebuttal of the respondent’s limitations and waiver claim. They further maintain that Paragraph ‘J’ of the Lease Rider requires the respondent to maintain and repair their air conditioner at their own cost. They contend the window unit is causing unspecified damages that amount to $2.000. The respondent also relies on Paragraph ‘J’ of the Lease Rider to support their contention that the tenant has the “right to use air conditioners abandoned by the previous tenant.” To maintain a breach of lease holdover, the petitioner must demonstrate the tenant has breached a substantial lease obligation that warrants eviction from the subject premises. Rent Stabilization Code 2524.2(c)(2). The obligation cited must be substantial and serious, not minor or di minimus. Park East Land Corp., v. Finkelstein, 299 NY 70, 85 NE2d 869; Park West Village v. Lewis, 62 NY2d 431, 477 NYS2d 124. In the case at bar, the petitioner alleges a two-pronged breach here: that the respondent illegally installed a window air conditioner in violation of his lease, and that that action caused damages to the building to the tune of $2,000. They rely on several causes of the lease, including; Paragraph ’7′ of the Lease, addresses ‘Alteration’ issues and states in the relevant part that “Tenant must obtain Landlord’s prior written consent to install any paneling, flooring, “built-in” decorations, partitions, railing, or make alterations or to paint or wallpaper the apartment…” Paragraph ’8′ of the Lease addresses ‘Repairs,’ and states in the relevant part that “Tenant must take good care of the apartment and all equipment and fixtures in it…Tenant must, at tenant’s cost, make all repairs and replacements whenever the need results from tenant’s act or neglect.” Paragraph ’10′ of the Lease addresses ‘Liability’ and states in the relevant part. “Tenant must pay for damages suffered and reasonable expenses of Landlord’s relating to any claim arising from any act or neglect of Tenant.” Paragraph ‘J’ from the Lease Rider states, “The Tenant will have the right to use air conditioners abandoned by the previous tenant. The landlord does not make warranty as to the condition of the said air conditioner. The tenant will make service, maintain, and repair air conditioner at the tenant’s own cost and expense.” The Court sees nothing in these clauses, either implicitly or explicitly, that prohibits the tenant from using a window air conditioner unit. Nothing in the lease prohibits it, and Paragraph ‘J’ of the Lease Rider appears to allow it. If the lease is silent with respect to the right to have an appliance, then the installation of such is protected by the tenant’s general common law right to “use and enjoyment” of the premises, as long as the use of the appliance does not cause damage, waste, or nuisance.” A & B Cabrini Realty Co., v. Newman, 237 NYS2d 970. While the Court acknowledges that a cause of action could exist if the permitted item or situation was causing damage to the premises, this is not the sole basis for petitioner’s claim and damages are framed as almost ancillary to the primary claim of illegal installation of the unit. The Notice to Cure, Notice of Termination, and the Petition are predicated on the allegation that the respondent is “not permitted to install any window air conditioner in the premises”. This claim and key basis for termination cannot be sustained by the petitioner. The damage claim is also vague and unsubstantiated here. Petitioner’s reliance on Paragraph ‘J’ of the Lease Rider to support their damages claim is misplaced. The clause solely addresses the tenant’s responsibility to maintain their air conditioner and not rely on the landlord to warranty or service it. Additionally, the petitioner does not dispute the respondent’s waiver claim regarding the statute of limitations for a breach of lease summary proceeding other than inferring it does not apply because the unit is removed every winter. Merely because the tenant removes the air conditioner in the winter, which is common practice for window air conditioner units, does not stall the statute of limitations. Further, petitioners’ commencement of five other almost identical holdovers against other tenants in different buildings (See Resp. Exhibits G-K), while of course permissible if justified, is suspect only to the extent that the damages amount is the same in all five cases. $2,000 despite supposedly occurring in different apartments and different buildings. The coincidence certainly gives the appearance that the damages sought are arbitrary and obscure. Under CPLR 3211(a)(1), a dismissal is warranted if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law — Heaney v. Purdy, 29 NY2d 157, 324 NYS2d 47. The criterion is whether the proponent of the action has a cause of action, not whether he has stated one. Guggenheimer v. Ginzburg, 43 NY2d 268, 401 NYS2d 182; Rovello v. Orofino, 40 NY2d 636, 389 NYS2d 314. Here, the evidence the petitioner relies on for their cause of action fails. The lease does not prohibit the installation of a window air conditioner, which the petitioner cites as the basis for termination. For these reasons, the petition is dismissed without prejudice. Respondent’s counterclaims are severed without prejudice pursuant to CPLR 407 as they are not inextricably linked to the petitioner’s claim. (See, City of New York v. Canderlario, 35 AD2d 617). Dated: August 19, 2024
