Appeals Court Upholds Water Usage Provision in Lease

December 20, 2024

LVT Number: #33495

Landlord sued building tenants, seeking a declaration concerning water use at the building. The court denied landlord's motion for summary judgment and granted tenants' motion declaring that the parties' lease required the tenant to pay for water used or consumed for any purpose other than ordinary lavatory purposes or used in unusual quantities. The lease also provided that tenants would be the "sole judge" of whether water usage exceeded that threshold.

Landlord sued building tenants, seeking a declaration concerning water use at the building. The court denied landlord's motion for summary judgment and granted tenants' motion declaring that the parties' lease required the tenant to pay for water used or consumed for any purpose other than ordinary lavatory purposes or used in unusual quantities. The lease also provided that tenants would be the "sole judge" of whether water usage exceeded that threshold. Contrary to landlord's contention, the court found that the terms of the lease and rider didn't contradict each other and each of the terms could be read and enforced in harmony.

Landlord appealed and lost. The appeals court rejected landlord's assertion that charging additional rent for excessive water use in tenant's discretion as permitted by the lease produced "a result that is absurd . . . or contrary to the reasonable expectations of the parties." The appeals court also found that the lower court properly determined that the lease's no-waiver provision precluded a finding of waiver absent an actual written waiver by tenants.

Tuckahoe Realty LLC v. 241 E. 76th Tenants Corp.: Index No. 656414/19, App. No. 2730, Case No. 2023-03295, 218 NYS3d 52, 2024 NY Slip Op 04937 (App. Div. 1 Dept./ 10/8/24; Webber, J.P., Moulton, Scarpulla, Rodriguez, Pitt-Burke, JJ)

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