(Download) "Ute G. Wuertz v. Leslie M. Cowne" by Supreme Court of New York # eBook PDF Kindle ePub Free
eBook details
- Title: Ute G. Wuertz v. Leslie M. Cowne
- Author : Supreme Court of New York
- Release Date : January 17, 1978
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 59 KB
Description
Order, Supreme Court, New York County, entered April 14, 1978, in this declaratory judgment action, denying plaintiff tenants motion for a preliminary injunction restraining defendant landlord from taking any action to terminate a certain lease, unanimously reversed, on the law and the facts, without costs or disbursements, and the plaintiff tenants motion granted on condition that she post an undertaking in the amount of $100. Plaintiff has been a tenant in defendants building under the present written lease since October 1, 1975. According to the lease: plaintiff may not keep a dog in her apartment without defendants written consent; all waivers of lease covenants must be in writing; defendants failure to insist on strict performance may not be deemed a waiver. Throughout her tenancy plaintiff has had a dog, openly and with full knowledge by defendant. However, when plaintiff objected to defendants application for a rent increase, defendant began to complain of the dogs presence and, for that reason, in February, 1978 sent plaintiff a notice of termination of the lease effective April 1, 1978. Plaintiff then commenced this action for a declaratory judgment and made the instant motion for a preliminary injunction. Plaintiff has pursued the procedure indorsed by the Court of Appeals in First Nat. Stores v Yellowstone Shopping Center (21 N.Y.2d 630) to test the propriety of a landlords notice of default and termination of the lease, a procedure necessary to toll the running of any period within which to cure the default. Otherwise, should a default be found to have existed, a tenant in plaintiffs position would be left without a remedy in a summary proceeding to evict, the time for cure having passed (150 East 57th St. Assoc. v Fletcher, 35 A.D.2d 947; Madison Ave. Specialties v Seville Enterprises, 40 A.D.2d 784). The equitable relief of tolling the period within which to cure a default cannot be invoked when there is no basis in the lease or the actions of the parties upon which to grant a right to cure (First Nat. Stores v Yellowstone Shopping Center, supra). The lease here does not provide for a curing period. The parties themselves, however, viewed the period between the issuance of the landlords notice and the date of its effect as a time within which the plaintiff could have cured any default. The plaintiffs moving papers sought an [65 A.D.2d 528 Page 529]