
    Hudson View Properties, Appellant, v Julia M. Weiss et al., Respondents.
    Supreme Court, Appellate Term, First Department,
    July 17, 1981
    APPEARANCES OF COUNSEL
    
      Rosenberg & Estis, P.C. (Gary M. Rosenberg and Sherwin Belkin of counsel), for appellant. Christopher Hansen for respondents. Robert Abrams, Attorney-General (Peter Bienstock of counsel), for intervener.
   OPINION OF THE COURT

Per Curiam.

Order entered July 28, 1980 is reversed, with $10 costs; the tenant’s motion to dismiss the petition (CPLR 3211, subd [a], par 7) is denied.

The record before us is sparse and its principal elements are easily recounted. Landlord served a notice to cure, dated January 24, 1980, upon Julia Weiss “and all other occupants” of the apartment here at issue. That notice to cure stated, “you are violating a substantial obligation of your tenancy *** viz., you are allowing a person who is not a tenant to reside in and occupy the premises.” The January 24,1980 notice afforded tenant 10 days to cure the alleged violation. On February 5, 1980, landlord served upon the tenant a 30-day notice of termination, which purported to terminate the subject tenancy on March 17, 1980, on the ground that the violation set forth in the January 24, 1980 notice had not been cured. The instant holdover proceeding was commenced after the tenant failed to surrender the premises as demanded in the February 5, 1980 notice of termination. The petition indicates that the premises are subject to rent control.

Tenant Weiss moved to dismiss the petition for failure to state a cause of action. In support of that motion Ms. Weiss submitted an affidavit, dated April 21, 1980, in which she states, upon information and belief, that the unauthorized occupant referred to by the landlord is one Jack A. Wertheimer “who lives in my apartment, who did not sign the lease, and to whom I am not related by blood or marriage.” Ms. Weiss goes on to allege in her affidavit in support of the motion to dismiss, again upon information and belief, that “the landlord through his attorney has stated that if I marry Mr. Wertheimer, he will withdraw his claim that I have violated the lease and will not seek to evict me. If I remain single, this action will continue. I am moving to dismiss on the grounds that these actions violate the State Human Rights Law [Executive Law] § 296(5)(a) and the City Human Rights Law § Bl-7.0(5a) which prohibit discrimination in housing on the basis of marital status.” Finally Ms. Weiss notes in her affidavit of April 21, 1980 that she does not believe that the nature of her relationship with Mr. Wertheimer is relevant to her motion. She states, however, that the court has inquired into that issue, and she goes on to note that Mr. Wertheimer and I have a “close and loving relationship”.

In an affidavit submitted on behalf of the landlord by the managing agent for the subject premises, in opposition to tenant’s motion to dismiss the petition, it is stated that Ms. Weiss moved into the apartment at issue on or about February 1, 1967 pursuant to a written lease between the then landlord and her husband, Lawrence Weiss. Ms. Weiss was never a signatory to that lease. Mr. Weiss subsequently vacated the premises, but it is unknown whether Mr. Weiss and Ms. Weiss are legally separated or divorced (whether Ms. Weiss or Mr. Wertheimer are single or married is not revealed in the record; what is clear is that they are not married to one another). Thereafter and shortly before the commencement of this proceeding an “unauthorized occupant”, identified in the caption as “John Doe” (i.e., Mr. Wertheimer) moved into the apartment.

Landlord, through its managing agent’s affidavit in opposition to tenant’s motion to dismiss the petition, professes no concern as to the nature of the relationship between the unauthorized occupant of the apartment and Ms. Weiss, other than that he is not a member of the immediate family of the tenant. Landlord notes, however, that were he (the unauthorized occupant) a member of the tenant’s immediate family, there would be no basis for the proceeding.

Although the lease underlying Ms. Weiss’ tenancy has not been included in the record on appeal, the lease, as quoted in the opinion of the court below, contains a restrictive covenant that “the demised premises and any part thereof shall be occupied only by tenant and members of the immediate family of tenant”. The occupancy of Ms. Weiss — she not having been a party to the original lease — was sanctioned by virtue of her status as a member of the original tenant’s immediate family. The New York State Attorney-General intervened in this proceeding and, in both the court below and on this appeal, has joined with the tenant in arguing that the petition fails to state a cause of action (citing Executive Law, art 15, § 296, subd 5, par [a] [State Human Rights Law]).

Section 296 (subd 5, par [a]) of the Executive Law provides that:

“It shall be an unlawful discriminatory practice for the owner *** or managing agent of, or other person having the right to sell, rent, or lease a housing accommodation * * * or any agent or employee thereof:
“(1) To refuse to sell, rent, lease or otherwise to deny to or withhold from any person or group of persons such a housing accommodation because of the *** marital status of such person or persons.” (L 1975, ch 803, eff on the 60th day after August 9, 1975.)

Section 296 (subd 5, par [a], cl [2]) contains an identical provision prohibiting discrimination “in the terms, conditions, or privileges of the sale, rental or lease of any such housing accommodation or in the furnishing of facilities or services in connection therewith.”

Section Bl-7.0 (subd 5, par [a]) of the Administrative Code of the City of New York (City Commission on Human Rights) is identical to section 296 (subd 5, par [a]) of article 15 of the Executive Law (State Human Rights Law) and section Bl-7.0 (subd 5, par [a], cl [2]) of the Administrative Code is identical to section 296 (subd 5, par [a], cl [2]) of the Executive Law.

A motion to dismiss for failure to state a cause of action may lie if the pleading is defective on its face, or, even if the claim is perfectly pleaded, if, upon affidavits and other permissible proof, the movant is able to go behind the pleading and establish that it lacks merit (Siegel, New York Practice, §265; Kelly v Bank of Buffalo, 32 AD2d 875). “[I]n order to succeed on such a motion, the defendant must convince the court that nothing the plaintiff might reasonably be expected to prove would help him; that the plaintiff simply does not have a claim.” (Siegel, New York Practice, §265.)

The pleading at issue is not defective upon its face. Landlord seeks to enforce a restrictive covenant contained in the lease executed at the inception of the subject tenancy. In the case of a statutory tenancy — such as that of the tenant Weiss — “[w]ith the exceptions of the duration of the term, and the amount of rent payable, the rule established by the weight of authority is that insofar as the provisions of a lease which has expired are not in conflict with the then prevailing emergency rent statutes, and are not confined to the period of the expired lease, they are projected into the statutory tenancy, and will continue in effect during the term of the statutory tenancy.” (1 Rasch, New York Landlord and Tenant [2d ed], § 286, p 372; see, also, Barrow Realty Corp. v Village Brewer Rest., 272 App Div 262; Cecere v Pegler, 90 NYS2d 528 [App Term].)

The law favors free and unrestricted use of property, and all doubts and ambiguities in a lease will be resolved in favor of the natural right to free use and enjoyment of premises against restrictions (Eagle Spring Water Co. v Webb & Knapp, 236 NYS2d 266; Arrathoon v Pergament Oceanside Corp., 53 Misc 2d 959, affd 26 AD2d 626, affd 19 NY2d 923). A landlord, however, does have the right to limit a tenant’s use of the premises (Lyon v Bethlehem Eng. Corp., 253 NY 111; Phillipse Towers v Ortega, 61 Misc 2d 539), and where covenants restricting the use of property are reasonable and not contrary to public policy, they will be enforced by the courts. Indeed it has long been held that parties to a lease may, by express provision therein, restrict the uses to which the lessee may put the demised premises (Ann., 148 ALR 583, 587, et seq.), and lease provisions restricting the use of premises to “tenant and members of tenant’s immediate family” — the very provision here sought to be enforced by the landlord — have consistently been sustained (Jema Props. v McLeod, NYLJ, June 7, 1976, p 8, col 1 [App Term]; One-Two East 87th St. Corp. v Rees, 35 Misc 2d 158 [App Term]; Irweis Holding Corp. v Glenn, 2 Misc 2d 804; Mideast Holding Corp. v Tow, 60 Misc 2d 422; cf. Fraydun Enterprises v Ettinger, 91 Misc 2d 119 [App Term]; Matter of Herzog v Joy, 74 AD2d 372). Tenant alludes to no judicial or statutory authority which expressly proscribes or declares it to be against public policy for landlord to limit the use of demised premises to the tenant or tenants and members of his or their immediate family.

Believing as we do that the pleading is sufficient on its face, the record must be examined to determine whether the tenant has offered evidence sufficient to establish that the landlord does not have a cause of action. Tenant sought to establish upon her motion to dismiss the petition, and the court below concluded, that the attempt of the landlord to enforce the restriction in the lease limiting the use of the premises to tenant and members of the tenant’s immediate family constituted Unlawful discrimination against the tenant upon the basis of her “marital status” (Executive Law, §296, subd 5, par [a]).

We are cognizant that section 300 of the Executive Law provides that “[t]he provisions of this article [including of course § 296, subd 5, par (a)] shall be construed liberally for the accomplishment of the purposes thereof” and that section Bl-11.0 of the Administrative Code similarly so provides (see, also, City of Schenectady v State Div. of Human Rights, 37 NY2d 421, 428). There is nonetheless little in this sparse record to suggest that the landlord, in seeking to enforce the restrictive covenant in the lease limiting occupancy to the tenant and members of tenant’s immediate family, had any interest in the marital status of the tenant Weiss or the occupant Wertheimer, other than that Wertheimer was not a member of Weiss’ immediate family. An interest in ascertaining whether an occupant qualifies for occupancy of a demised premises, under a lease provision authorizing occupancy by tenant and members of tenant’s immediate family (i.e., whether the occupant is a spouse, son, parent or other relation within the scope of “immediate family”) does not ipso facto connote discrimination on the basis of “marital status”; thus we are not persuaded by this sparse record that there has been a showing of discrimination by the landlord against the tenant upon the basis of her “marital status”. While clearly no cause of action lies under a restrictive covenant in a lease limiting occupancy to the tenant and members of tenant’s immediate family, where the tenant has married a newly arrived occupant, it does not follow that a landlord is automatically precluded by section 296 (subd 5, par [a]) of the Executive Law from enforcing such a restrictive covenant where the tenant and the new occupant are, for whatever reason, unmarried. In summary, landlord’s cause of action predicated upon the covenant in the specified lease restricting occupancy of the subject premises to the tenant and members of tenant’s immediate family does not appear to us to constitute discrimination per se on the basis of tenant’s “marital status”. In concluding that tenant failed to demonstrate that she is entitled to a dismissal of landlord’s petition pursuant to CPLR 3211 (subd [a], par 7), we do not, however, foreclose the tenant from offering proof at the time of trial that she is entitled to prevail in this proceeding because the landlord in maintaining this proceeding is indeed unlawfully discriminating against her on the basis of her “marital status” (Executive Law, § 296, subd 5, par [a]). Contrary to the argument made by the landlord, the proscriptions set forth in section 296 (subd 5, par [a]) of the Executive Law do not only apply to circumstances existing at the inception of a landlord-tenant relationship. A landlord’s conduct during the course of a tenancy may be shown to violate the provisions of section 296 (subd 5, par [a]).

Asch, J.

(dissenting). In my opinion, this court should affirm Judge Wilk’s dismissal and hold that, under the peculiar facts of this case, to oust Ms. Weiss would be violative of section 296 of article 15 of the Executive Law (Human Rights Law).

Preliminarily, landlord argues that section 296 has no application to a situation where the marital status of the apartment occupants changes after the rental term has begun. Although this position is not entirely untenable, I would hold to the contrary. Adopting landlord’s construction would, in my view, be to hew to an overly technical reading of article 15 of the Executive Law (Human Rights Law). Section 300 of that statute mandates that the Human Rights Law is to be liberally construed. Therefore, I would opt for an interpretation which would encompass a case where the marital status discrimination occurs after the initial leasing.

Furthermore, the very language of section 296 (subd 5, par [a], cl [1]) speaks of a refusal to “sell, rent, lease or otherwise to deny to * * * any person *** because of * * * marital status” (emphasis added). These statutory phrases, read in the light of the command that the Human Rights Law be liberally construed (see Executive Law, § 300) mean, to my mind, that in a case like the one presented here, where discrimination takes place after the initial leasing the proscriptions of section 296 are fully operative.

Moreover, to adopt landlord’s construction of section 296 would leave a gaping and illogical lacuna in the Human Rights Law. If (as its sparse legislative history indicates) the purpose of section 296 was to provide unmarried couples an unimpeded opportunity to obtain housing, it would stand to reason that the Legislature would have wanted the protections of that section to remain in force even after the commencement of the lease. Consequently, an attempt to oust a tenant because of a change in the marital status of the partners occupying her apartment should be judged in the same light as would be a threshold refusal to rent.

I find unpersuasive the remonstrances by landlord that the lower court’s decision has the effect of nullifying a landlord’s right to pass upon and approve those who are to occupy his premises. Certainly, the existing lease clause restricting occupancy to close family members impinges to a large degree on a landlord’s veto over those who are to share in the premises. A close family member may be just as objectionable as an unrelated party deciding to share a house with an unmarried mate. But, as the court noted below, all things being equal, discrimination on the basis of marital status is precisely what section 296 of the Executive Law proscribes. In short, that the objectionable occupant is unrelated by marriage to tenant may not, consistent with article 15 of the Executive Law (Human Rights Law), be used as a predicate for ouster.

Landlord’s final challenge to the dismissal of its petition focuses on the rent-controlled status of the premises in dispute. It was never the intent of the Legislature, argues landlord, to extend the benefits of those laws to lovers. To the contrary, contends landlord, the statutory structure reveals a clear bias in favor of bestowing rent advantages on the families and spouses pf rent control tenants. Prime reliance is placed by landlord on section 56 of the Rent and Eviction Regulations of the City of New York which states that where a tenant no longer occupies his apartment, a certificate of eviction may issue, except when the remaining occupant is either the surviving spouse or some other member of the deceased’s tenant’s family. Case law also betrays a pro-tenant bias. (See Matter of Herzog v Joy, 74 AD2d 372 [where tenant of rent-controlled unit vacates apartment family members and spouses are entitled to continue reaping benefits of rent control laws].)

While these regulations do show a pro-family bias, they have no role to play under the facts of this case. Tenant Weiss has neither died nor vacated unit 15H. The Human Rights Law permits Wertheimer to occupy the apartment. Hence, he falls within the broad definition of tenant spelled out in subdivision m of section Y51-3.0 of the Administrative Code of the City of New York (Rent and Rehabilitation Law) and is entitled to continue residing in the apartment. Whether, if Ms. Weiss left the apartment, Wertheimer could maintain his possession is a knotty question which need not be addressed here. For purposes of this case, it is sufficient to note that under section 296 of the Executive Law, Ms. Weiss and Wertheimer are completely within their rights in staying in apartment 15H.

As a postscript, it should be noted that the grounds for the dissent are fairly narrow. Concededly, the occupants of the apartment “maintain a close and loving relationship”. Yet, it is indisputable that the landlord required a formal marriage as the essential condition for continuing the tenancy. The marriage certificate does not always supply a litmus test for love. Further, under the Human Rights Law, it cannot serve as the key which opens the door to the tenancy of an apartment.

The landlord still has ample discretion to select and reject tenants provided that he does not use categories interdicted under the law, such as, marital status, in screening their suitability.

I would affirm the lower court’s dismissal of the petition.

Concur: Tierney, J. P., and Riccobono, J.; Asch, J., dissents in a separate memorandum opinion.  