Tenant Who Cooked Food in Apartment Didn’t Create Nuisance

Landlord sued to evict tenant for breaching her lease and creating a nuisance by preparing Ecuadoran food in her apartment kitchen for sale at construction sites. Tenant had a food vendor’s license and had received prior landlord’s permission to cook in the apartment. She had done this for 15 years without a serious condition in the kitchen. Landlord’s architect testified that tenant’s use of the kitchen with intent to sell food was the definition of a commercial use and wasn’t a permissible use in the building’s zoning district. The court ruled against landlord after trial. For a business use to substantially violate a lease it must materially affect the character of the building, damage property, or disturb other tenants. There was no evidence of tenant complaints, and no proof of increased traffic, rodent infestation, or fires. The behavior also didn’t rise to the level of establishing a nuisance that posed a threat to landlord or other tenants.

121 Irving MGM LLC v. Perez: Index No. 80117/15, NYLJ No. 120280068804 (Civ. Ct. Kings; 1/18/17; Stanley, J)