Tenants Claim Landlord Breached Leases by Restricting Swimming Pool Amenity

In a proposed class action, current and former building tenants sued landlord for curtailing a swimming pool amenity at the building by restricting two of the three lanes at the pool to swim classes for nontenants offered by nonparty SwimJim between 10 a.m. and 6 p.m., thereby monopolizing the pool. Tenants claimed breach of contract, breach of an implied covenant of good faith and fair dealing, and deceptive acts or practices in the conduct of a business under GBL Section 349. Landlord asked the court to dismiss the case. The court ruled for landlord, in part by dismissing many but not all of tenants' claims.

Tenants' leases stated that, "Owner reserves the right to set the days and hours of use for all Amenities and to change the character of or close any Amenity based upon the needs of Owner and in Owner's sole and absolute discretion, without notice, obligation or recompense of any nature to Tenant." In addition, all tenants agreed in their leases "to assume all risks of every type, including but not limited to risks of personal injury or property damage, of whatever nature or severity except for landlord's negligence, related to tenants use of the amenities." Tenants didn't claim materially misleading content in their leases. The lease provisions for the building provided in some manner that the use of the pool was subject to landlord's discretion. The court may find later that landlord had exercised its discretion in a manner giving rise to contract damages, but no reasonable consumer could read the lease provision and conclude that they would have unfettered access to the pool at all times.

Lee v. UDR, Inc.: Index No. 151061/2023, 2024 NY Slip Op 32400(U)(Sup. Ct. NY; 7/11/24; Nock, J)