Adam Leitman Bailey Prevails for Landlord at Trial Level and at Appellate Division After Tenants Relinquished Lease Rights To Overturn Agreements and Force Buyout

By Adam Leitman Bailey

Landlord-Tenant—Landlord Could Insist That Tenants Retrieve Personal Property Under Controlled Conditions

A trial court had denied plaintiffs’ motion to restore “settled action to the calendar,” to compel a defendant landlord’s adherence to a stipulation of settlement and for an award of continuing damages and legal fees. The Appellate Division affirmed.

The plaintiffs were long-term tenants in a building that had been “severely damaged and rendered unsafe by a fire in February 2017.” They had commenced an action seeking, inter alia, “access to their personal property left in the apartment.” The plaintiffs and the landlord had entered into the settlement in 2017, pursuant to which the subject lease would be terminated, and the landlord agreed that it would not dispose of the plaintiffs’ personal property until the building had been “deemed safe and plaintiffs were allowed access to remove their belongings.” The settlement provided that a non-breaching party could seek injunctive relief and reasonable attorney fees in the event of a breach or a threatened breach of the settlement.

The plaintiffs argued that a landlord’s letter “updating them on upcoming repairs and seeking their input concerning items that needed to be relocated or discarded in anticipation of the repairs, did not constitute a threatened breach of the settlement agreement.” The Appellate Division (court) rejected the plaintiffs’ argument that such letter constituted a threatened breach of the settlement. The court found that the letter “merely sought a mutual understanding to determine which items in a portion of the unit needing repair were not salvageable due to fire, smoke, water or more damage…..”

Comment: Adam Leitman Bailey of Adam Leitman Bailey, P.C., attorney for the landlord, explained that the landlord had “suffered a devastating fire in its building” and former tenants sought to not only recover their property from the unsafe building, but also sought what the landlord believed were “undeserved buyouts.” He stated that the landlord was entitled to require that the tenants retrieve their property under “controlled conditions.” He also noted that several tenants had “peaceably relinquished” their tenancies. Finally, he stated that the landlord had merely sought to “categorize what property was salvageable” and by doing so, had not violated its obligations to permit tenants to recover their surviving property.

Varley v. Elk 300 E 83, LLC, Appellate Division, 1st Dept., 2019 NY Slip Op 07022, Case No. 151716/17, decided Oct. 1, 2019, Richter, J.P., Gische, Kapnick, Kern, Moulton, JJ.

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