Feist & Feist v. Long Island Studios, Inc. , 287 N.Y.S.2d 257 ( 1968 )

Munder, J.

This is a summary proceeding by a landlord to recover possession of real property. The trial court awarded judgment to the landlord and the Appellate Term affirmed.

The tenant had occupied three hangars on Old Country Road, in the former Roosevelt Field, near Mineóla, under a 25-year lease which restricted use of the premises £ £ solely for a general services motion picture studio ”. By another provision of the lease the tenant was permitted to make alterations but not in excess of $10,000 in cost without the landlord’s consent in writing.

. As to violations of its provisions, paragraph (4) of subdivision (a) of article 19 of the lease reads, in part: ££ 19. (a) Each of the following events shall be a default hereunder by Tenant and a breach of the lease: * * * (4) If tenant shall fail to perform any of the other agreements, terms, covenants or conditions hereof on Tenant’s part to be performed and such non-performance shall continue for a period of thirty (30) days after notice thereof by Landlord to Tenant or, if such performance cannot be reasonably had within such thirty-day period, Tenant shall not in good faith have commenced such performance within such thirty-day period and shall not diligently proceed therewith to completion.”

Asserting that the tenant violated both the use restriction and the provision as to alterations, the landlord had such 30-day notice served upon the tenant. When the tenant failed to comply with the notice, neither desisting from the violation of the use restriction nor restoring or at least showing good faith by starting to restore the premises, the landlord exercised its option to declare the lease terminated and recover possession of the premises by this summary proceeding. The cancellation clause, paragraph (1) of subdivision (b) of article 19 of the lease reads:

££ (b) In the event of any such default: (1) Landlord shall have the right to cancel and terminate this lease, as well as all of the right, title and interest of Tenant hereunder, by giving to Tenant not less than five (5) days’ notice of such cancellation and termination, and upon the expiration of the time fixed in such notice this lease and the terms hereof, as well as all of the right, title and interest of Tenant hereunder, shall expire in the same manner and with the same force and effect, except as to Tenant’s liability, as if the expiration of the time fixed in such notice of cancellation and termination were the end of the term herein originally demised.”

Before the tenant had made any radical departure from the lease, the landlord sent the following letter:

“February 24,1966

Mr. Michael Myerherg 234 West 44th Street New York, New York

Re: Long Island Studios Roosevelt Field Garden City, New York

Dear Mr. Myerherg:

We note from the press that you are apparently plan- . ning to use part of your studios on Old Country Road as a cabaret or discotheque type facility, open to the general public.

Since you will probably be making a formal request for our Board’s permission to use the premises for this purpose, will you please let us know when you plan to make the request so that we can plan to include it on the Board’s agenda at a meeting in the near future.

Sincerely,

Roosevelt Nassau Operating Corp.

John A. Feist Managing Director

JAF:dp ”

No response was made to the letter and no request was made for a lease modification. Instead the tenant proceeded to remodel one of the hangars, expending, as the trial court found, much more than the authorized limit of $10,000, and opened a discotheque type of facility to the general public for an admission fee of $2.50 per person.

Our colleague, Mr. Justice Hopkins, in his dissent, does not dispute that these were violations of the terms of the lease. It is his view that forfeiture is not a proper remedy for the landlord, that the use restriction is not to be treated as a covenant or a conditional limitation and that, with the law abhorring forfeitures, only injunctive relief may be had by the landlord.

The terms “ condition ”, “ conditional limitation ” and “ covenants ” used in connection with leases/are given subtle and conflicting distinctions in decisional law. Rasch in' his treatise “ The New York Law of Landlord and Tenant and Summary Proceedings ” defines each of these terms (vol. 1, §§ 667, 669, 685). He says that a breach of a covenant is the subject of injunctive relief (§ 668), that on the breach of a condition the landlord has the option to declare the lease at an end or to waive forfeiture (§ 679) and that the happening of the subject of a conditional limitation automatically terminates the lease (§ 686).

In the instant case the tenant violated two material conditions of the lease. The landlord sought to have these violations corrected by service of a 30-day default notice. On the tenant’s noncompliance with that notice, although the alternate remedy of injunction was available to the landlord (Lyon v. Bethlehem Eng. Corp., 253 N. Y. 111), the latter elected, as was its right, to terminate the lease. This was accomplished by the service of the five-day notice pursuant to paragraph (1) of subdivision (b) of article 19 of the lease. Upon the lapse of the time fixed in the notice, the term of the lease expired and summary relief was available to the landlord.

The violations were deliberately and consciously created, without required permission and indeed despite the landlord’s written suggestion that authorization be solicited. In these circumstances there is no. estoppel against the landlord’s exercise of its full remedy, however harsh that may appear to be. Equity in such case follows the law.

The order of the Appellate Term should be affirmed, with costs.