Lease Bars Tenant from Using Roof

(Decision submitted by Santo Golino of the Manhattan law firm of Kucker Kraus & Bruh, LLP, attorneys for the landlord.) Facts: Landlord sued tenant to bar use of roof. Tenant had lived in apartment since 1978. Although there was no mention of an exterior terrace in his lease, tenant used the rooftop area outside his apartment for entertaining and gardening for many years. In 1987, landlord got a court order barring tenant's use of the roof. Tenant continued to use the roof in violation of the order. In 1995, landlord sued tenant, again to bar use of the roof. The court ruled against landlord and awarded tenant attorney's fees. The court found that landlord and tenant acted from 1978 to 1987 as if the rooftop was tenant's terrace. So the right to use the roof became part of tenant's lease. Landlord appealed. Court: Landlord wins. Tenant's lease clearly barred use of the roof. At various times since tenant moved in, landlord had issued warnings to stop using the roof. Tenant never denied that his use of the roof was impermissible. This outweighed any conduct on landlord's part that seemingly gave consent to tenant's use of the roof.

Jossel v. Filicori: NYLJ, p. 25, col. 5 (1/9/97) (App. Div. 1 Dept.; Murphy, PJ, Milonas, Wallach, Rubin, Mazzarelli, JJ)