
    [713 NYS2d 799]
    Manhattan Embassy Co., Respondent, v Margaret M. Burns, Appellant.
    Supreme Court, Appellate Term, First Department,
    June 26, 2000
    APPEARANCES OF COUNSEL
    
      McGarry & Simon, New York City (William A. Simon of counsel), for appellant. Berman & Fromme, P. C., New York City (Michael J. Berman of counsel), for respondent.
   OPINION OF THE COURT

Per Curiam.

Order entered June 7, 1999 modified by denying landlord’s motion for summary judgment dismissing the first counterclaim, and said counterclaim is reinstated; as modified, order affirmed, without costs.

Tenant’s original 1973 lease stated, in a rider provision: “Tenant shall have the right to sublet the demised premises to a subtenant, but the sublessee and the terms of the sublease shall be first approved in writing by landlord, which approval shall not be unnecessarily withheld.” In this nonpayment proceeding, tenant counterclaimed for lost sublease income attributable to landlord’s alleged wrongful refusal to approve a proposed sublet. Civil Court dismissed the claim, reasoning that since the lease did not confer upon the tenant “any greater right to sublet” than that set forth in Real Property Law § 226-b, tenant’s relief is limited to the exclusive remedies provided in that statute.

It is settled that in an action commenced pursuant to Real Property Law § 226-b (2) (c), compensatory damages are not available and the tenant is limited to the “exclusive” statutory remedies in the event a landlord unreasonably withholds consent to a sublease (72nd St. Assocs. v Pyle, 105 AD2d 607; Schmidt v Solow Mgt. Corp., 111 AD2d 619). However, we do not believe that the Legislature intended to affect enforcement of preexisting contractual rights in leases predating the enactment of section 226-b. “Section 226-b of the Real Property Law was not intended to take away any rights of the tenant” (Lexann Realty Co. v Deitchman, 83 AD2d 540, 541 [Silverman, J., concurring]). Clearly, the purpose of the statute was remedial and intended to increase tenants’ rights during a period of housing scarcity by permitting them to sublet premises not in use (see, Conrad v Third Sutton Realty Co., 81 AD2d 50). This tenant had previously negotiated the affirmative right to sublet, subject to prior approval which could not be “unnecessarily withheld.” For breach of this lease covenant, tenant retains the traditional remedy of damages (see, e.g., 601 W. 26 Corp. v Wiley & Sons, 32 AD2d 522). Accordingly, the counterclaim is reinstated and remanded for further proceedings on the issue of landlord’s withholding of consent.

In the absence of a cross appeal, we do not address or reach the propriety of Civil Court’s dismissal of the nonpayment petition.

McCooe, J.

(dissenting).

I respectfully dissent. The enactment of Real Property Law § 226-b reflects the legislative intent to limit the sublet rights and remedies of landlords and tenants to those statutorily specified, whether or not greater rights in the lease predate the passage of the law. This intent is clearly shown by comparing the disparate statutory treatment of assignment and sublet rights in the same section which specifically authorizes greater contractual rights for an assignment but is silent as to a subletting. Subdivision (1) applies to assignments and subdivision (2) to sublets.

“Section 226-b. Right to sublease or assign.

“1. Unless a greater right to assign is conferred by the lease, a tenant * * * may not assign his lease without the written consent of the owner * * *

“2. (a) A tenant * * * shall have the right to sublease * * * subject to the written consent of the landlord * * * Such consent shall not be unreasonably withheld * * *

“(c) * * * if the landlord unreasonably withholds consent, the tenant may sublet in accordance with the request and may recover the costs of the proceeding and attorneys fees if it is found that the owner acted in bad faith by withholding consent.

“3. The provisions of this section shall apply to leases entered into or renewed before or after the .effective date of this section * * *

“5. Any sublet or assignment which does not comply with the provisions of this section shall constitute a substantial breach of lease or tenancy.” (Emphasis supplied.)

The intention of the Legislature is the “primary consideration of the courts” in the interpretation of a statute and the insertion of the broader language for an assignment and the omission of similar language for a sublease is a clear indication of its intent to exclude greater sublease rights. (McKinney’s Cons Laws of NY, Book L, Statutes §§ 92, 97, 240.) Real Property Law § 226-b (3) indicates that this section applies to the lease entered into prior to the passage of this law. Subdivision (5) provides that noncompliance constitutes a substantial breach of the lease. (Rima 106 v Alvarez, 257 AD2d 201, 205.) The reference to expanded sublet rights in a lease in McDermott v Pinto (101 AD2d 224, 229) is dicta.

The tenant is held to the statutory “unreasonably withheld” and not the lease “unnecessarily withheld” standard and its remedies are statutory. (72nd St. Assocs. v Pyle, 124 Misc 2d 1087, affd as mod 105 AD2d 607, appeal dismissed 64 NY2d 774.) The rationale of the motion court for affirmance is not adopted.

The order should be affirmed since as a matter of law the tenant has not complied with the statutory information requirements.

Parness, P. J., and Gangel-Jacob, J., concur; McCooe, J., dissents in a separate memorandum.  