Trial Needed to Decide If Tenants Have Exclusive Use of Roof

Tenant sued landlord, claiming that she had a right to exclusive use of the building roof under the terms of her lease to a penthouse apartment. Landlord and tenant both asked the court to decide the case without a trial. The court refused, finding that there were questions of fact that needed further examination. Tenant appealed and lost. Tenant's 1982 lease contained a handwritten provision stating "usage of roof terrace subject to landlord's approval." After the apartment was combined with the other penthouse apartment in 1989, tenant signed a new lease that stated, "No one is allowed on the roof." However, the 1989 lease also described the premises as "apartment (and terrace, if any)." Landlord argued that the roof didn't have a terrace, only a roof covered with tar paper. The court found that whether a roof terrace existed within the meaning of the lease had to be determined by a trial.

Garza v. 508 West 112th Street, Inc.: NYLJ, 6/12/08, p. 36, col. 5 (App. Div. 1 Dept.; Lippman, PJ, Williams, Moskowitz, Acosta, JJ)