This was originally published on the SGR Blog.
Would Court Order Tenant to Permit Access by Landlord?
Residential apartment leases usually authorize landlords access to the units to inspect and repair. And, as a recent case illustrates, the Court may be required to intervene where such access is denied.
400 West 59th Street Partners LLC is the owner and landlord of 1 Columbus Place in Manhattan. Tobi Oyolesi was a tenant of apartment S30C in the building, and Travis Lilley was a guest.
West 59th sought a preliminary injunction directing Oyolesi to grant access to his apartment for inspection and to repair a water leak emanating from an air conditioner, enjoining and restraining Lilley from entering the building, enjoining and restraining Lilley from assaulting, harassing, menacing, recklessly endangering, intimidating, or threatening building residents and occupants, and enjoining and restraining Lilley from creating unreasonable health or safety risks to residents and occupants of the building.
West 59th submitted the affidavit of Genie Wright, property manager for the building. According to Wright, after receiving reports of a water leak from Oyolesi’s apartment, an attempt was made to investigate and repair the leak but Oyolesi refused to provide access to his apartment. Paragraph 15 of the lease for the unit allowed West 59th access to Oyolesi’s apartment during reasonable hours with reasonable notice to perform inspections and repairs.
Concerning Lilley, Wright stated that an investigation, including interviews with building staff, showed that Lilley threatened and/or verbally abused building personnel on multiple occasions. Wright also quoted from an email received by West 59th from another tenant in the building concerning Lilley’s conduct. Wright did not attest that he personally witnessed any of Lilley’s conduct detailed in his affidavit.
A preliminary injunction will only be issued if plaintiff demonstrates, with convincing evidentiary support, a likelihood of success on the merits, irreparable injury absent granting of a preliminary injunction, and that a balancing of equities favors its position. A mandatory preliminary injunction (one mandating specific conduct), by which the movant would receive some form of the ultimate relief sought as a final judgment, is granted only in unusual situations, where the granting of the relief is essential to maintain the status quo pending trial of the action.
West 59th showed a likelihood of success on its claim of breach of its contractual and statutory right of access to Oyelesi’s apartment to inspect and repair the water leak through the affidavit of Wright. Oyelesi’s affidavit in opposition was insufficient to rebut that showing of a likelihood of success on the merits since he merely stated that he discontinued using the air-conditioner that caused the water leak. Merely discontinuing use of the air-conditioner did not resolve the problem. And, under the terms of the lease, West 59th had the right to repair the air conditioner to ensure that the leak did not reoccur. West 59th correctly pointed out that Housing Maintenance Code § 27-2008 granted a landlord the right to access Oyolesi’s apartment to make repairs. West 59th also established irreparable injury and a balancing of the equities in its favor on its right to access claim, because it might be found to have breached its obligations to other tenants if the leak and any damage caused by the leak were not repaired.
Accordingly, that portion of West 59th’s motion seeking access to Oyolesi’s apartment to inspect and repair the leak was granted.
But West 59th did not demonstrate with convincing evidence a likelihood of success on its nuisance claim concerning Lilley’s conduct. In the residential landlord-tenant context nuisance is defined as a condition that threatens the comfort and safety of others in the building and is evidenced by a pattern of continuity or recurrence of objectionable conduct. While West 59th might ultimately establish its nuisance claim based on Lilley’s conduct, there was an insufficient showing of a likelihood of success on the merits because the sole affidavit offered in support of the motion was from Wright, the property manager, who did not state that he personally witnessed any of Lilley’s conduct. Instead, Wright based his allegations against Lilley on interviews with building staff and an email received from another tenant in the building. Such hearsay offered for the truth was insufficient to establish a likelihood of success on a nuisance claim.
However, the Court found that West 59th might very well suffer irreparable injury in the absence of an order enjoining Lilley’s conduct and a balancing of the equities were in its favor. Lilley did not submit an affidavit in opposition. Oyolesi, in his affidavit, apologized on behalf of Lilley.
Accordingly, continuation of the order imposed against Lilley enjoining him from assaulting, harassing, menacing, recklessly endangering, intimidating, threatening building staff, tenants and occupants of the building and requiring him to wear a mask in the building was warranted. That injunction provided some security to the building personnel and others while merely restraining Lilley from continuing any unlawful or wrongful activities.
So, Oyolesi was ordered to grant access to his apartment to West 59th and its workers to inspect and repair the water leak and until such time as the repairs were complete. Lilley was enjoined from assaulting, harassing, menacing, recklessly endangering, intimidating, threatening building staff, tenants, and occupants of the building, and required to comply with the building’s rules requiring wearing a mask.