63 Misc. 2d 1056 | N.Y. City Civ. Ct. | 1970
This is a holdover proceeding brought by the landlord against the tenant charged with a violation of a substantial obligation of his lease, to wit: The harboring of a dog in tenant’s apartment which is alleged to be contrary to the provisions of the tenant’s lease. The lease is a printed form containing several riders. The lease was executed by the parties as were the riders. On the reverse side of the printed form of the signed lease is contained a set of rules and .regulations which were not signed by the parties. The lease and riders were prepared by the landlord and submitted to the tenant for execution. The covenants of the lease contain no provision with respect to the harboring of a dog on the premises. The rules and regulations do contain such a provision, to wit, No. 17, as follows: “ No animals of any kind shall be kept or harbored in the demised premises, unless the same in each instance be expressly permitted in writing by the Landlord, and such consent, if given, shall be revocable by the Landlord at any time. The keeping or harboring of any animal in the demised premises without such consent, or after revo
Eider “ B ” to the lease and signed by the parties provides in part as follows: “ In the event tenant harbors an animal in his apartment, same being contrary to the terms of the lease and rules and regulations therein contained, the landlord may in its sole and exclusive judgment fix the amount of $10 per month for such violation which shall be paid as additional rent.” (Italics writer’s.)
The lease contains a further provision (par. 9) which provides that the rules and regulations shall be faithfully observed by the tenant.
The landlord to terminate the lease served an appropriate notice upon the tenant alleging the violation of a substantial obligation of the tenancy, in that the tenant was harboring a dog in his apartment. The tenant failed to remove the dog and the instant holdover proceeding was commenced. The tenant admitted having the dog in its apartment, a three-pound Yorkshire terrier for approximately one month. The landlord makes no assertion that the dog is a nuisance nor does it in any way impair the cleanliness or maintenance of the building. The courts have made various determinations in such instances. (See App. Div., 1st Dept. Knolls Co-op. Section No. II v. Cashman, N. Y. L. J., March 5, 1963, p. 17, col. 3, affd. 19 A D 2d 789, affd. 14 N Y 2d 579; North Carolina Leasing Co. v. Lazare, App. Term, 2d & 11th Jud. Dists., N. Y. L. J., July 13, 1970, p. 11, col. 2; Mutual Redevelopment Houses v. Hanft, 42 Misc 2d 1044 and cases cited; Hilltop Vil. Co-op. No. 4 v. Goldstein, 43 Misc 2d 657; Trump Vil. Sec. 4 v. Cooper, 61 Misc 2d 757; Lincoln Co-op Apts. v. Zaifert, 23 A D 2d 796.)
However, it does not appear that these decisions are applicable here. This case is distinguished and should be determined on other considerations.
Where parties to a lease provide that the landlord can at his option increase the rent upon the breach of a covenant, their purported designation of that covenant as a substantial obligation of the tenancy is not given effect for the purposes of bringing a summary proceeding. They have demonstrated that they do not really consider the presence of dogs the breach of a substantial obligation (Trump Vil. Sec. 3 v. Rothstein, 62 Misc 2d 742).
Cases are legion holding that any uncertainty or ambiguity in lease drawn by lessor should be resolved in favor of lessee. (See 455 7th Ave. v. Hussey, 295 N. Y. 166; Eighteenth St. Realty Corp. v. Maxthan Realty Co., 233 App. Div. 687.)
The court therefore holds that the harboring of this dog does not constitute a violation of a substantial obligation of the lease and accordingly the petition is dismissed. There are no grounds for a final order in favor of the landlord.