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Supreme Court of the State of New York, New York County
Sep 25, 2008
2008 N.Y. Slip Op. 51947 (N.Y. Misc. 2008)



Decided September 25, 2008.

Stewart Occhipinti, LLP, By: Charles A. Stewart, Esq., New York, New York, for Plaintiff.

Margaret G. Klein Associates, By: Eugene Guarneri, Esq., New York, New York, for Defendants/Third-Party Plaintiffs.

Schiff Hardin, LLP, By: William P. Scott, Esq., New York, New York, for Third-Party Defendant.

Plaintiff moves (1) pursuant to CPLR 3212 for partial summary judgment against defendants on the issue of liability and a hearing on the issue of damages, and (2) pursuant to CPLR 3123(c) to recover the expenses, including attorneys' fees, incurred in connection with her requests to admit. At issue is a landlord's liability for allowing tenant's former roommate to access tenant's apartment after the tenant told the landlord that the ex-roommate no longer had permission to enter the tenant's apartment.

Defendants cross-move pursuant to CPLR 3212 for summary judgment on their third-party complaint.


Plaintiff is the tenant of a duplex apartment in a building at 45 Wall Street in Manhattan owned by defendant 45 Wall Street LLC and managed by defendant Rockrose Development Corp. (collectively, the "landlord"). She brought this action to recover for the loss she allegedly suffered when the landlord, in contravention of her specific instructions, allowed third-party defendant Meng Shen, plaintiff's former roommate, access to plaintiff's apartment on February 25, 2005. Plaintiff alleges that when Shen gained entry, she stole plaintiff's property, including antique Chinese furniture valued "at more than $200,000." Plaintiff's complaint asserts four causes of action against the landlord: (i) breach of warranty of habitability and quiet enjoyment; (ii) breach of contract; (iii) negligence; and, (iv) trespass. Curiously, plaintiff did not sue Shen.

The landlord brought the third-party action seeking contribution from Shen. Shen, countering that everything she removed from plaintiff's apartment belonged to her, asserted a third-party counterclaim for conversion against plaintiff.

This is not plaintiff's first motion for summary judgment. By decision dated August 9, 2005 (Soto, J.), plaintiff successfully moved for partial summary judgment on the issue of the landlord's liability. However, on appeal, the Appellate Division, First Department ruled that, as a matter of law, plaintiff should not have prevailed because "[t]he sole piece of evidentiary material offered by plaintiff in support of her summary judgment motion was her own affidavit, . . . [which was] hearsay evidence, and as such was insufficient to satisfy the movant's burden of establishing a prima facie showing of entitlement to an award of summary judgment" ( Ji v Rockrose Dev. Corp. , 34 AD3d 253 , 254 [1st Dept 2006]).

On this second motion, made after more than two years of discovery, plaintiff relies on her lease (Ji Aff., Ex A) and on the deposition testimony of Wlodzimierz Grzyboski, the landlord's building manager (Stewart Affirm., Ex B [Grzyboski EBT]), in addition to her own supporting affidavit.

Grzyboski testified that he witnessed a building employee handyman, accompanied by plaintiff, changing the lock in her apartment, which is next door to his (Grzyboski EBT, at 16-17). Grzyboski did not recall receiving a request from plaintiff to bar Shen from the apartment, but stated that "[w]e don't really take seriously those requests as we are not like a police precinct or something. Because if the person lives with another for a long time and everyone knows her, we cannot be like in the middle of shutting the door in front of that person even if leaseholder is saying that that person has no right to come over here" ( id. at 34:18-25). In fact, once someone has been added to the front desk logbook as a welcome guest they will not be barred from the premises — even if the tenant who originally gave the permission requests it — unless "there is a court protection or order or something, that person has to call police to keep away of another person" ( id., at 38, 42, 51-52). As far as the building staff is concerned, once the tenant gives someone a key, that person "has right to go to this apartment. . . . Because we cannot choose the person who has right in or out because this is not possible" ( id. at 43-44). If the tenant changes the locks to keep the person out, the building staff will use their keys to let him in ( id. at 52). Grzyboski said he believed that Shen was a tenant ( id. at 25-26, 28, 30-31) because her name was on the residents list and she was allowed to receive and pick up packages ( id. at 32-33).

Plaintiff testified at her EBT that she had the locks changed at the end of November 2004 (Guarneri Affirm., Ex G [Ji EBT], at 57).

Nevertheless, Grzyboski admitted that, in December 2004, plaintiff had given a note to one of the doormen requesting that Shen not be allowed entry to her apartment. "[I]t wasn't anything official, just a scratch of paper, and she wrote it and she left it at front desk. When she put that she doesn't allow Ms. Shen into her apartment" ( id. at 45). The doorman kept the note "for like one week at front deck and later just removed it" ( id. at 46).

According to Grzyboski, he was working on the day the furniture was moved out of plaintiff's apartment but did not personally witness it; he heard later that day "that the door was opened with master key by one of the employees at 45 Wall Street" ( id. at 18, ll 17-20). Plaintiff arrived home that evening, found the furniture missing and complained at the front desk; Grzyboski was called down, spoke to plaintiff and told her to call the police ( id. at 18-20). Grzyboski reported the incident to his superior orally and by e-mail ( id. at 21). That e-mailed report, which was apparently not produced in response to plaintiff's discovery demands ( ibid.), indicated that Shen was the person who entered the apartment and her signature was at the front desk because "when porter was called for opening door to apartment 202, Ms. Shen had to sign in our book at front desk that she going[sic] this apartment" ( id., at 22).

It appears that initially plaintiff and Shen applied to rent the apartment together (see Guarneri Opp. Affirm., Ex G), but plaintiff moved into the apartment in March 2003 pursuant to a lease in which she was the sole tenant named (Ji Aff., Ex A). Shen, a friend of plaintiff's whose business caused her to travel frequently between China and New York, stayed with plaintiff when she was in town. According to Shen, she gradually brought her furniture into the apartment and moved in as plaintiff's roommate in September 2003 (Guarneri Opp. Affirm, Ex F [Shen EBT] at 18-22). That same month, the two women entered into a business arrangement, where Shen agreed to pay plaintiff a commission for clients referred to her by plaintiff. Subsequently, the two women had a falling out and Shen moved out of the apartment. Plaintiff testified at her EBT that she had the locks changed at the end of November 2004 (Ji EBT, at 57).


The dispositive question is whether the landlord had a right to use a key to plaintiff's apartment to permit access to a third-party without notice to plaintiff, where (1) entry was not for the purpose of repair, maintenance, showing the apartment to prospective renters, or for any emergency; and (2) the plaintiff had specifically directed the landlord to refuse the third-party access to plaintiff's apartment.

The landlord does not argue that Shen's entry was permissible pursuant to paragraph 13 of Ji's lease, i.e., generally speaking, for repair and maintenance, to show the apartment to prospective purchasers or lessees, or for entry by "an emergency contact" designated by plaintiff ( See Ji Aff., Ex A, at 9-10). Rather, the landlord argues that it could not have interfered with Shen's access to the apartment because Shen was Ji's roommate.

More than a century ago, the Court of Appeals held that "a covenant for quiet enjoyment . . . protect[s] the lessee against the unlawful entry of the lessor himself" ( Mayor of New York v Mabie, 13 NY 151, 156). A "tenant who had validly entered into a contractual relationship under an existing lease" has a "sacred right" "to quietly enjoy exclusive possession to their premises during the term of the lease. It is, therefore, clear that the landlord had, by contract, conveyed to the tenant full possessory rights which permitted the tenant to admit and deny entry at will" ( People v Taddeo, 62 Misc 2d 833, 836 [County Ct, Onondaga Co, 1969]).

A tenant has all the rights afforded by the lease and the law; as between landlord and tenant, an occupant has only such limited license as the tenant chooses to give, limit or withdraw. It is undisputed that plaintiff had the landlord change the locks to her apartment at the end of November 2004. It is further undisputed that, in December 2004, plaintiff informed the doormen in writing to bar Shen from plaintiff's apartment. Thus, the landlord was aware that plaintiff had revoked any permission for Shen to enter plaintiff's apartment. By Grzyboski's own admission, the landlord would intentionally disregard a tenant's instructions to bar a previously registered occupant unless the tenant first went to the trouble and expense of getting a court order directing the landlord to honor the tenant's right to enjoy the property estate already conveyed by the lease. Thus, the landlord allowed tenants to admit occupants at will, but made such admittance virtually irrevocable.The landlord does not argue that Shen's entry was permissible under the lease; the landlord fails to raise a triable issue of fact as to whether Shen had a right of access under the law as a current roommate. Shen testified at her EBT that the last time she had paid rent for the apartment, either to Ji or to the landlord, was around August 2004 (Shen EBT, at 59, 134). Shen's answer alleges that she was a resident at the apartment between September 2003 and September 2004, and that Shen allegedly informed Ji that she had decided to move out of the apartment. Guarneri Opp. Affirm., Ex E [Third-Party Answer ¶¶ 2, 5]. Thus, the record does not support the landlord's contention that Shen had any rights of access to the apartment as a roommate on February 25, 2005.

On the one hand, a landlord excluding one roommate at the unilateral request of another might possibly face liability for interfering with a roommate's access under the Roommate Law (Real Property Law § 235-f). On the other hand, a landlord granting access may fear liability for breach of the covenant of quiet enjoyment. However, the Court does not address the issue of a landlord's liability for breach of the covenant of quiet enjoyment, when it grants access to a former roommate or occupant under a reasonable belief that such a person still enjoyed rights as current roommate or occupant. The evidence here, however, does not raise a triable issue of fact at to whether this the landlord had such a reasonable belief. The undisputed fact that the landlord changed the locks to the apartment at Ji's sole request belies the existence of such a reasonable belief.

"It is not, however, every mere trespass by the lessor upon the demised premises which will amount to a breach of this covenant. Although the covenanter cannot avail himself of the subterfuge that his entry was unlawful, and be therefore a trespasser to avoid the consequences of his own wrong, still, to support the action of covenant, the entry must be made under an assumption of title. It need not be averred in the pleading that the grantor acted under a claim of title; but if the character of the act be such as reasonably to show that the defendant acted upon such an assumption, the action will be sustained."

Mabie, 13 NY at 156.

There is a question of fact as to whether the landlord's and Shen's acts amount to mere trespass, or something more constituting breach of the covenant of quiet enjoyment. Although the landlord's agents unlocked Ji's apartment, it is not clear that the landlord's own agents entered into Ji's apartment along with Shen. Shen claims that she entered into the apartment to reclaim furniture that belonged to her. If that were the case, then Shen's entry into Ji's apartment to remove Shen's own furniture would, at most, constitute trespass.

Therefore, plaintiff must be denied summary judgment on the issue of liability on the first cause of action, for breach of the covenant of quiet enjoyment. Because a covenant of quiet enjoyment is implied in every lease ( Fifth Ave. Bldg. Co. v Kernochan, 221 NY 370; Mulliken v Brown, 201 AD 860 [2d Dept 1922]; see also 7-82 Warren's Weed New York Real Property § 82.12), plaintiff is also denied summary judgment as to liability on the second cause of action, for breach of the lease.

Plaintiff has not established a prima facie case of summary judgment on the third cause of action, sounding in negligence. As plaintiff indicates, landlords have a "common-law duty to take minimal security precautions against reasonably foreseeable criminal acts by third parties"( James v Jamie Towers Hous. Co., 99 NY2d 639, 641; see also Burgos v Aqueduct Realty Corp., 92 NY2d 544, 548). However,

"Negligence cases by their very nature do not usually lend themselves to summary judgment, since often, even if all parties are in agreement as to the underlying facts, the very question of negligence is itself a question for jury determination. Only if it can be concluded as a matter of law that defendant was negligent, may summary judgment be granted in a negligence action."

( Ugarizza v Schmieder, 46 NY2d 471, 474). Although plaintiff contends that the landlord should have contacted Ji when Shen appeared with movers, she does not cite any authority for the proposition that the duty to provide minimal security precautions required, as a matter of law, notice to Ji. The issue of whether the landlord's disregard of Ji's instruction to bar Shen from entering plaintiff's apartment constitutes negligence is for the factfinder. The record does not compel that finding as a matter of law.

As to the fourth cause of action, for trespass, plaintiff alleges that, "defendants through Ms. Shen intentionally entered Ms. Ji's property and wrongfully used it without Ms. Ji's authorization or consent." Complaint ¶ 32. "Entering upon the land of another without permission, even if innocently or by mistake, constitutes trespass"( Curwin v Verizon Communications (LEC) , 35 AD3d 645 , 645 [2d Dept 2006]; Burger v Singh , 28 AD3d 695 , 698 [2d Dept 2006]). "While physical entry by the trespasser upon another's land is not necessary, the trespasser must have at least caused or directed another person to trespass." Golonka v Plaza at Latham LLC, 270 AD2d 667, 669 (3d Dept 2000).

On this motion, plaintiff does not contend that the landlord's own employees entered into plaintiff's apartment. To the extent that plaintiff is alleging that the landlord committed trespass based on Shen's entry into the apartment, plaintiff did not meet her burden of proving, as a matter of law, that the landlord caused Shen or directed Shen to commit trespass. The landlord unlocked plaintiff's apartment for Shen at Shen's request; it was Shen's desire and decision to enter plaintiff's apartment.

Who owns what property? This is the principal question remaining for the resolution of plaintiff's claims that she was damaged by the landlord. It is also at the heart of the landlord's third-party claims against Shen, and Shen's conversion counterclaim against plaintiff. Shen claims that she owned the property taken from the apartment to which the landlord had granted Shen access. Indeed, Shen has asserted a claim against plaintiff charging that, by changing the locks to the apartment before Shen finished moving out, plaintiff wrongfully deprived Shen of her property.

The matter of ownership is indeed fraught with factual issues. It is undisputed that the furniture initially belonged to Shen, who avers that she "never gave, sold or traded these pieces of furniture to [p]laintiff" (Shen Opp. Aff. ¶ 2). Yet, in a handwritten statement dated September 30, 2003, purportedly signed only by Shen, purportedly memorializing a business agreement between plaintiff and Shen, they also agreed to trade furniture (Guarneri Opp. Affirm., Ex L). It was under that agreement that plaintiff allegedly acquired the alleged antique Chinese furniture which Shen allegedly took from plaintiff's apartment. However, Shen denies having written or signed that alleged agreement (Scott Opp. Affirm., Ex 3 [Shen EBT], at 65-66]). A typed agreement, dated the next day, October 1, 2003 (Guarneri Opp. Affirm., Ex N) which explicitly supercedes all prior verbal and written agreements, bears the signatures of both Shen and plaintiff and covers their business arrangement but does not mention anything about furniture.

Whether plaintiff may recover as damages from the landlord the value of any items that Shen removed must await a determination at trial as to whether plaintiff is owner of those items. Finally, in light of plaintiff's claims that Shen removed property allegedly belonging to plaintiff, it is curious that plaintiff has not brought any claims against Shen for property allegedly taken.


Plaintiff also moves pursuant to CPLR 3123(c) to recover costs and attorneys' fees (primarily those associated with Grzyboski's deposition) incurred as a result of the landlord's failure to fully respond to her notice to admit.

CPLR 3123(c) provides that if a party is properly served with a notice to admit and does comply, and "the party requesting the admission thereafter proves . . . the truth of any such matter of fact, he may move . . . for an order requiring the other party to pay him the reasonable expenses incurred in making such proof, including reasonable attorney's fees."

Defendants did not ignore plaintiff's demand; rather, they formally replied to it by stating that they could not "truthfully admit or deny the truth of the statements . . . on the grounds that such demand is palpably improper and beyond the scope of the purpose of a Notice to Admit since it requires an admission of an ultimate or conclusory fact and interpretation of law" (Stewart Affirm., Ex A). That was the correct response (see Washington v Alco Auto Sales, 199 AD2d 165 [1st Dept 1993], citations omitted). Because plaintiff sought admissions that "went far beyond the permissible scope of a notice to admit, [the landlord] was under no obligation to respond" ( Miller v Hilman Kelly Co., 177 AD2d 1036, 1037 [4th Dept 1991]).

"[T]he purpose of a notice to admit is to eliminate from the litigation factual matters which will not be in dispute at trial, not to obtain information in lieu of other disclosure devices. . . . Thus, a notice to admit may not be utilized . . . as a substitute for other disclosure devices, such as examinations before trial" ( Taylor v Blair, 116 AD2d 204, 205-206 [1st Dept 1986][citations omitted]). Plaintiff's argument, that if defendants had made the requested admissions, Grzyboski's deposition would not have been necessary, itself evidences the inappropriateness of her notice to admit. Furthermore, a notice to admit may not be used for matters which are at the heart of the controversy at issue ( Orellana v City of New York, 203 AD2d 542, 543 [2d Dept 1994]; Villa v New York City Hous. Auth., 107 AD2d 619, 620 [1st Dept 1985]). "A notice to admit pursuant to CPLR 3123(a) is to be used only for disposing of uncontroverted questions of fact or those that are easily provable, not for the purpose of compelling admission of fundamental and material issues or ultimate facts" ( Meadowbrook-Richman, Inc. v Cicchiello, 273 AD2d 6 [1st Dept 2000]; Murphy v University Club, 200 AD2d 532, 533 [1st Dept 1994]). "Requests for admissions with respect to contested facts that go to the very essence of the dispute [are] palpably improper" ( Burnside v Foglia, 208 AD2d 1085 [3d Dept 1994]).


The landlord seeks summary judgment in its favor on its claim for indemnification from Shen for any damages it must pay to plaintiff. Shen has appeared in connection with these motions but has not moved for any relief herself.

"[T]he key element of a common-law cause of action for indemnification is not a duty running from the indemnitor to the injured party, but rather is a separate duty owed the indemnitee by the indemnitor'. The duty that forms the basis for the liability arises from the principle that every one is responsible for the consequences of his own negligence, and if another person has been compelled * * * to pay the damages which ought to have been paid by the wrongdoer, they may be recovered from him'"

Raquet v Braun, 90 NY2d 177,183 (1997). Here, the landlord has not articulated any legal duty that Shen owes to the landlord. Moreover, "[s]ince the predicate of common law indemnity is vicarious liability without actual fault on the part of the proposed indemnitee, it follows that a party who has itself actually participated to some degree in the wrongdoing cannot receive the benefit of the doctrine." Trustees of Columbia Univ. in City of NY v Mitchell/Giurgola Assocs., 109 AD2d 449, 453 (1st Dept 1985). Given that the landlord admittedly disregarded plaintiff's instructions to bar Shen from the apartment, there are issues of fact as to whether the landlord acted negligently, precluding common-law indemnification from Shen on this motion. Accordingly, "apportionment among tort-feasors, rather than a shifting of the entire loss through indemnification, is the proper rule when two or more tort-feasors share in responsibility for an injury, in violation of duties they respectively owe to the injured person" Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559, 568 (1987).


Accordingly, it is hereby

ORDERED that plaintiff's motion for summary judgment is denied; and it is further

ORDERED that defendants' cross motion for summary judgment in their favor on common-law indemnification against Shen is denied.

Pursuant to CPLR 325 (d), the Court hereby transfers this case to the Civil Court of the City of New York. A separate transfer order has been signed and is being filed herewith.

Summaries of


Supreme Court of the State of New York, New York County
Sep 25, 2008
2008 N.Y. Slip Op. 51947 (N.Y. Misc. 2008)
Case details for


Case Details


Court:Supreme Court of the State of New York, New York County

Date published: Sep 25, 2008


2008 N.Y. Slip Op. 51947 (N.Y. Misc. 2008)