Scott E. Mollen
Scott E. Mollen ()

Landlord-Tenant—Tenant Entitled to View Video Surveillance Tapes in Non-Primary Residence Case, But Landlord Did Not Have to Allow Tenant to Review Tapes for 50 Hours at Landlord’s Attorney’s Office—Since the Tenant Sought to View All the Tapes, Landlord Must Make All Tapes Available, But Tenant Must Pay Cost

A landlord commenced a summary holdover proceeding, seeking to recover possession of a rent-stabilized apartment, on the grounds that the tenant “failed to maintain the apartment as her primary residence.” The tenant raised several defenses, including a “general denial, and retaliatory eviction.” The landlord moved to strike the tenant’s affirmative defenses and for leave to take discovery. A prior court granted the motion and permitted the landlord to conduct a deposition and serve a document production.

Over the next three years, motion practice involved discovery disputes. The court had issued four orders requiring the tenant to produce specific documents and appear for a deposition. The parties were “going to arrange to view…surveillance footage” (tapes) “outside of court.” A stipulation provided that the tapes would be viewed at the landlord’s attorney’s office. The tenant and her attorney viewed the tapes for approximately four hours. The tapes consisted of “302 consecutive days of footage.”

The tenant argued that “it would take approximately 50 hours to view the tapes in their entirety” and requested additional time to view the videos. The landlord would not provide an additional opportunity to view the tapes in their attorney’s office. The landlord suggested that the tenant “purchase a set of the DVD’s to view on their own.” The tenant thereafter moved to exclude “the [tapes] from trial, based on [landlord's] failure to allow [tenant] to view the entirety of the footage in [landlord's] office.”

The court explained that “CPLR §3126(2) provides for a preclusion order where a party has failed to comply with discovery in a manner that is willful and contaminous.” The court found that the landlord’s conduct did not rise to that level. The issue was whether the landlord complied with the court’s prior order to disclose the tapes, by permitting the tenant “one afternoon with her attorney to view the [tapes], or whether [landlord] is required to provide [tenant] with additional opportunity to view the [tapes] or provide [tenant] with a copy of the material.”

The prior court order stated that if the landlord intended to use any tapes or digital recordings in the trial, it had to permit the tenant “to view their recordings at the office of [landlord's] attorney at least one month before the trial.” The landlord contended that it complied with the court’s order, by permitting the tenant to view the tapes and by providing the tenant with “a summary of the video surveillance” and a copy of the daily “surveillance report.” The landlord was willing to provide the tenant with a copy of the DVD’s, but at the tenant’s cost.

“CPLR §3101(I) requires ‘full disclosure of any films, photographs, video tapes…, including transcripts or memoranda thereof, involving a [party].’” The court found that, “given the vast amount of surveillance footage, it is unduly burdensome to require [landlord's] counsel to accommodate in their office, [tenant] and her attorney, to view the entirety of fifty hours of footage, nor does this court find that same was intended by [a prior court order].”

The court explained:

The mandatory nature of disclosure of video codified in the CPLR reflects that parties “…have a substantial need to view surveillance films before trial…. (b)ecause films are so easily altered, and there is a…danger that deceptive tapes, inadequately authenticated, could contaminate the trial process…Authentication of surveillance films can be a slow and painstaking process, and because of the potentially devastating effects of such evidence, it would be improper to curtail a (party’s) efforts to do so….”

The court opined that it would be too burdensome for the tenant “to spend a month in [landlord's] office reviewing the tapes.” Rather, it was more reasonable “to afford them their own opportunity, using their own expert if so inclined to review the authenticity and reliability of the evidence.” Since the tenant sought to view the tapes in their entirety, the court held that the tenant “is to be provided with a copy of the DVDs, at [tenant's] cost, so as to view at her leisure.” The court reasoned that “[e]ach party should shoulder the initial burden of financing his own suit, and based upon such a principle, it is the party seeking discovery of documents who should pay the cost of their reproduction….”

Accordingly, the landlord was ordered to provide the tenant with a copy of the tapes at the tenant’s cost. The tenant was given an additional month to view the video and have it evaluated by her own expert. The court also ordered the parties to meet at the landlord’s counsel’s office to afford the tenant “an additional final opportunity to review the original footage.”

Goldman v. Bracker, L&T 82806/12, NYLJ 1202771231701, at *1 (Civ., NY, Decided Oct. 26, 2016), Kraus, J.


Landlord-Tenant—Tenant Relocation Agreement Required Diligence and Cooperation, But Lacked an Outside Date for Vacating the Units—Therefore, Tenants Were to Be Given a “Reasonable Time” and Under the Totality of the Circumstances, They Were Not Yet In Breach of Their Agreement—Finding Affordable Housing in New York City Is Difficult

A “nonprofit charitable organization founded to provide protection and assistance to immigrants,” commenced a holdover proceeding, seeking possession of several “units” at the subject building, on the basis that month-to-month tenancies had been terminated pursuant to RPL 232-a. The parties had settled the proceeding without a judgment. The petitioner thereafter moved for a judgment.

The petitioner had been leasing units in the building to some of the respondents for a long period of time. The parties had settled the proceeding by a March 26, 2015 stipulation. The stipulation provided, inter alia, that the respondents represented that they were “actively and diligently seeking relocation assistance” and that the petitioner would “forbear from prosecuting the matter so long as, inter alia, respondents fully cooperate with their attorneys’ and representatives’ active and diligent assistance to relocate….” The stipulation also provided that respondents’ counsel would provide monthly updates to the petitioner on the status of relocation efforts. Additionally, the stipulation stated that it was “the product of extensive negotiations….” The stipulation did not provide that respondents’ failure “to relocate would be a breach of the stipulation and the stipulation does not contain a deadline by which respondents were to relocate.”

The petitioner moved for a judgment against several respondents on the grounds that they had failed to relocate by October 2016 and had breached their “promise to relocate, made in March of 2015.” The petitioner asserted that the respondents’ failure to relocate was a default under the stipulation. The respondents countered that the language of the stipulation did “not render a failure to relocate a breach of the stipulation.” The petitioner contended that the stipulation’s omission of a relocation deadline date “gives rise to an inference that respondent must relocate on a reasonable time frame.” All parties to the stipulation had been represented by counsel.

The court acknowledged that the “canons of contractual construction” required that “a court…infer that the parties intended for performance to continue for a reasonable duration where the parties to a contract have not clearly expressed a time frame….” The case authorities cited by the petitioner addressed “a reasonable time for performance of an obligation according to a contract,” i.e., the cases address a party’s obligation to do things that a contract “requires.” The court opined that the petitioner’s problem is that the stipulation did not provide that “respondents’ performance requires relocation.” Rather, the stipulation obligated the respondents “to fully cooperate with their attorneys’ and representatives’ active and diligent assistance to relocate—and no more with regard to relocation.”

Moreover, the stipulation stated that the court should “construe the stipulation as having been “drafted by both (represented) parties” and the court “shall not construe the language of the stipulation against one party or another as per the doctrine of contra preferendum, and that the stipulation was the result of extensive negotiations.” Therefore, the court found the language of the stipulation “militates against a deviation from the plain language of the stipulation….”

Thus, the court held that the respondents’ failure to relocate did not constitute “a per se default of the stipulation.” Such conclusion would require “an inference that the stipulation impliedly states something the parties did not specifically include, an inference the court should be ‘extremely reluctant’ to draw.” Therefore, the issue was whether the respondents had failed “to cooperate with efforts to relocate.” A determination of “a reasonable period of time depends upon the facts and circumstances of a particular case.” In reaching such decision, the courts may consider:

the subject matter of the contract, what the parties contemplated at the time it was entered, the circumstances surrounding performance…. the situation of the parties…, how much time a person of ordinary diligence and prudence would need under the circumstances,…, the previous conduct of the parties, the presence or absence of good faith, the experience of the parties, the possibility of prejudice or hardship to either one,…, and the presence or absence of a clause providing that time is of the essence.

An affidavit from “an organizer who works for one of respondents’ attorneys (‘the organizer’),” alleges “she has worked ‘tirelessly’ to relocate respondents.” She explained that they are “frail, elderly, disabled, and indigent.” The organizer noted that “some of respondents have lived in the…building for twenty years” and that she had compiled data “detailing efforts she has made to relocate respondents” and had forwarded it to the petitioner’s attorney as the stipulation required. The respondents’ data showed that the respondents had made “556 applications for alternative housing by multiple applications per month, such that a third of the original respondents have already relocated.”

Although several cases had considered the reasonableness of time to perform a contract, they had involved parties in a commercial context “or parties involved in the transfer of real property, which implicates specialized exigency concerns.” Neither party had cited “authority relevant to indigent households seeking affordable housing.”

The court took judicial notice of “the extraordinary difficulty, documented in the organizer’s affidavit of “finding affordable housing in New York City.” Under all of the circumstances, the court did “not find, at this particular point in time and on this record, that the duration of respondents’ efforts…to relocate is now unreasonable, and the court” denied “so much of petitioner’s motion as seeks a judgment against respondents on these grounds.”

It was undisputed that respondents’ attorneys had not provided the petitioner with “updates of relocation efforts” every month since execution of the stipulation. Thus, the court held that the respondents were “now in compliance with the stipulation and ‘appropriate relief’ for respondents’ counsels’ failure to report every month does not include respondents’ eviction.” Therefore, the court granted the petitioners’ motion “solely to the extent of directing respondents’ counsel to comply with the monthly reporting requirements of the stipulation during the duration of the occupancy of any of respondents in the subject building.”

Comment: Of the original 18 respondents, nine have already relocated. It is always a “challenge” to relocate tenants, regardless of whether they are commercial, industrial, retail or residential tenants. In my experience, relocation of residential tenants can be very challenging. Sometimes, the “discussion” is only about a money settlement, which does not include an owner’s obligation to relocate a tenant. When relocation involves the needs of indigent, elderly and disabled individuals and subsidies or other public assistance may be required, relocation may require the cooperation of governmental agencies. Some agencies work faster than other agencies and sometimes the agencies lack the resources needed to accomplish the relocation.

Additionally, some tenants may be unreasonable as to what constitutes a reasonably comparable apartment. If the size is approximately the same, the configuration may be different. If the size and the configuration are acceptable, the view from the new apartment may be unacceptable. A frequent and understandable objection from tenants is that a new apartment is not in the same neighborhood. What is “nearby” may involve a subjective judgment. People often want to continue attending their nearby place of worship and patronizing their local merchants. They often want to or need to remain close to their relatives and friends and want mass transportation that is convenient for their work, friends, relatives and/or needed services.

Commercial tenants may also have special needs, such as minimum size loading docks, access to streets, visibility to the public or other special requirements that require land use applications (a need for a special permit or variance) and therefore, relocation of commercial tenants could also present substantial challenges.

Given the foregoing, most agreements to relocate will specify outside dates and incorporate strong penalty provisions. Some relocation agreements provide that the premises must be left “broom clean” and that even a “de minimis” failure to comply with the terms of the agreement will constitute a material breach of the agreement.

In the subject case, each party was represented by counsel and the relocation agreement did not specify an outside date. Rather, the respondents represented that they were “diligently seeking relocation,” they agreed to cooperate with their representative in such effort and their representative was to provide monthly updates to the petitioners.

The court recognized that under decisional law, the failure to incorporate a firm outside date for the relocation, meant that relocation had to occur within a “reasonable” time period. Legal precedent held that in determining what is reasonable, courts may consider many factors. Here, the court considered the extensively negotiated language of the stipulation, the number of applications the respondents had made for alternate housing, equities involving elderly, indigent and disabled tenants, diligent efforts to relocate the tenants, etc. The court concluded that the tenants are obligated to provide reasonable cooperation, but that under the circumstances, the “reasonable time” deadline had not yet been breached.

Some may question why an outside date for the relocation was not incorporated into the agreement. The absence of a relocation deadline may not have been an oversight or the product of inartful drafting. Rather, it may have been because everyone recognized the challenges of relocating these tenancies. The respondents may have refused to agree to a specific date, because they knew that they may not be able to comply with a fixed date. It is possible that the petitioner knowingly accepted such fact and simply negotiated the best agreement that it could achieve.

St. Joseph Immigrant Home v. Bulong, 77560/2014, NYLJ 1202774049499, at *1 (Civ., NY, Decided Oct. 27, 2016), Stoller, J.

Landlord-Tenant—Tenant Entitled to View Video Surveillance Tapes in Non-Primary Residence Case, But Landlord Did Not Have to Allow Tenant to Review Tapes for 50 Hours at Landlord’s Attorney’s Office—Since the Tenant Sought to View All the Tapes, Landlord Must Make All Tapes Available, But Tenant Must Pay Cost

A landlord commenced a summary holdover proceeding, seeking to recover possession of a rent-stabilized apartment, on the grounds that the tenant “failed to maintain the apartment as her primary residence.” The tenant raised several defenses, including a “general denial, and retaliatory eviction.” The landlord moved to strike the tenant’s affirmative defenses and for leave to take discovery. A prior court granted the motion and permitted the landlord to conduct a deposition and serve a document production.

Over the next three years, motion practice involved discovery disputes. The court had issued four orders requiring the tenant to produce specific documents and appear for a deposition. The parties were “going to arrange to view…surveillance footage” (tapes) “outside of court.” A stipulation provided that the tapes would be viewed at the landlord’s attorney’s office. The tenant and her attorney viewed the tapes for approximately four hours. The tapes consisted of “302 consecutive days of footage.”

The tenant argued that “it would take approximately 50 hours to view the tapes in their entirety” and requested additional time to view the videos. The landlord would not provide an additional opportunity to view the tapes in their attorney’s office. The landlord suggested that the tenant “purchase a set of the DVD’s to view on their own.” The tenant thereafter moved to exclude “the [tapes] from trial, based on [landlord's] failure to allow [tenant] to view the entirety of the footage in [landlord's] office.”

The court explained that “ CPLR §3126(2) provides for a preclusion order where a party has failed to comply with discovery in a manner that is willful and contaminous.” The court found that the landlord’s conduct did not rise to that level. The issue was whether the landlord complied with the court’s prior order to disclose the tapes, by permitting the tenant “one afternoon with her attorney to view the [tapes], or whether [landlord] is required to provide [tenant] with additional opportunity to view the [tapes] or provide [tenant] with a copy of the material.”

The prior court order stated that if the landlord intended to use any tapes or digital recordings in the trial, it had to permit the tenant “to view their recordings at the office of [landlord's] attorney at least one month before the trial.” The landlord contended that it complied with the court’s order, by permitting the tenant to view the tapes and by providing the tenant with “a summary of the video surveillance” and a copy of the daily “surveillance report.” The landlord was willing to provide the tenant with a copy of the DVD’s, but at the tenant’s cost.

CPLR §3101(I) requires ‘full disclosure of any films, photographs, video tapes…, including transcripts or memoranda thereof, involving a [party].’” The court found that, “given the vast amount of surveillance footage, it is unduly burdensome to require [landlord's] counsel to accommodate in their office, [tenant] and her attorney, to view the entirety of fifty hours of footage, nor does this court find that same was intended by [a prior court order].”

The court explained:

The mandatory nature of disclosure of video codified in the CPLR reflects that parties “…have a substantial need to view surveillance films before trial…. (b)ecause films are so easily altered, and there is a…danger that deceptive tapes, inadequately authenticated, could contaminate the trial process…Authentication of surveillance films can be a slow and painstaking process, and because of the potentially devastating effects of such evidence, it would be improper to curtail a (party’s) efforts to do so….”

The court opined that it would be too burdensome for the tenant “to spend a month in [landlord's] office reviewing the tapes.” Rather, it was more reasonable “to afford them their own opportunity, using their own expert if so inclined to review the authenticity and reliability of the evidence.” Since the tenant sought to view the tapes in their entirety, the court held that the tenant “is to be provided with a copy of the DVDs, at [tenant's] cost, so as to view at her leisure.” The court reasoned that “[e]ach party should shoulder the initial burden of financing his own suit, and based upon such a principle, it is the party seeking discovery of documents who should pay the cost of their reproduction….”

Accordingly, the landlord was ordered to provide the tenant with a copy of the tapes at the tenant’s cost. The tenant was given an additional month to view the video and have it evaluated by her own expert. The court also ordered the parties to meet at the landlord’s counsel’s office to afford the tenant “an additional final opportunity to review the original footage.”

Goldman v. Bracker, L&T 82806/12, NYLJ 1202771231701, at *1 (Civ., NY, Decided Oct. 26, 2016), Kraus, J.


Landlord-Tenant—Tenant Relocation Agreement Required Diligence and Cooperation, But Lacked an Outside Date for Vacating the Units—Therefore, Tenants Were to Be Given a “Reasonable Time” and Under the Totality of the Circumstances, They Were Not Yet In Breach of Their Agreement—Finding Affordable Housing in New York City Is Difficult

A “nonprofit charitable organization founded to provide protection and assistance to immigrants,” commenced a holdover proceeding, seeking possession of several “units” at the subject building, on the basis that month-to-month tenancies had been terminated pursuant to RPL 232-a. The parties had settled the proceeding without a judgment. The petitioner thereafter moved for a judgment.

The petitioner had been leasing units in the building to some of the respondents for a long period of time. The parties had settled the proceeding by a March 26, 2015 stipulation. The stipulation provided, inter alia, that the respondents represented that they were “actively and diligently seeking relocation assistance” and that the petitioner would “forbear from prosecuting the matter so long as, inter alia, respondents fully cooperate with their attorneys’ and representatives’ active and diligent assistance to relocate….” The stipulation also provided that respondents’ counsel would provide monthly updates to the petitioner on the status of relocation efforts. Additionally, the stipulation stated that it was “the product of extensive negotiations….” The stipulation did not provide that respondents’ failure “to relocate would be a breach of the stipulation and the stipulation does not contain a deadline by which respondents were to relocate.”

The petitioner moved for a judgment against several respondents on the grounds that they had failed to relocate by October 2016 and had breached their “promise to relocate, made in March of 2015.” The petitioner asserted that the respondents’ failure to relocate was a default under the stipulation. The respondents countered that the language of the stipulation did “not render a failure to relocate a breach of the stipulation.” The petitioner contended that the stipulation’s omission of a relocation deadline date “gives rise to an inference that respondent must relocate on a reasonable time frame.” All parties to the stipulation had been represented by counsel.

The court acknowledged that the “canons of contractual construction” required that “a court…infer that the parties intended for performance to continue for a reasonable duration where the parties to a contract have not clearly expressed a time frame….” The case authorities cited by the petitioner addressed “a reasonable time for performance of an obligation according to a contract,” i.e., the cases address a party’s obligation to do things that a contract “requires.” The court opined that the petitioner’s problem is that the stipulation did not provide that “respondents’ performance requires relocation.” Rather, the stipulation obligated the respondents “to fully cooperate with their attorneys’ and representatives’ active and diligent assistance to relocate—and no more with regard to relocation.”

Moreover, the stipulation stated that the court should “construe the stipulation as having been “drafted by both (represented) parties” and the court “shall not construe the language of the stipulation against one party or another as per the doctrine of contra preferendum, and that the stipulation was the result of extensive negotiations.” Therefore, the court found the language of the stipulation “militates against a deviation from the plain language of the stipulation….”

Thus, the court held that the respondents’ failure to relocate did not constitute “a per se default of the stipulation.” Such conclusion would require “an inference that the stipulation impliedly states something the parties did not specifically include, an inference the court should be ‘extremely reluctant’ to draw.” Therefore, the issue was whether the respondents had failed “to cooperate with efforts to relocate.” A determination of “a reasonable period of time depends upon the facts and circumstances of a particular case.” In reaching such decision, the courts may consider:

the subject matter of the contract, what the parties contemplated at the time it was entered, the circumstances surrounding performance…. the situation of the parties…, how much time a person of ordinary diligence and prudence would need under the circumstances,…, the previous conduct of the parties, the presence or absence of good faith, the experience of the parties, the possibility of prejudice or hardship to either one,…, and the presence or absence of a clause providing that time is of the essence.

An affidavit from “an organizer who works for one of respondents’ attorneys (‘the organizer’),” alleges “she has worked ‘tirelessly’ to relocate respondents.” She explained that they are “frail, elderly, disabled, and indigent.” The organizer noted that “some of respondents have lived in the…building for twenty years” and that she had compiled data “detailing efforts she has made to relocate respondents” and had forwarded it to the petitioner’s attorney as the stipulation required. The respondents’ data showed that the respondents had made “556 applications for alternative housing by multiple applications per month, such that a third of the original respondents have already relocated.”

Although several cases had considered the reasonableness of time to perform a contract, they had involved parties in a commercial context “or parties involved in the transfer of real property, which implicates specialized exigency concerns.” Neither party had cited “authority relevant to indigent households seeking affordable housing.”

The court took judicial notice of “the extraordinary difficulty, documented in the organizer’s affidavit of “finding affordable housing in New York City.” Under all of the circumstances, the court did “not find, at this particular point in time and on this record, that the duration of respondents’ efforts…to relocate is now unreasonable, and the court” denied “so much of petitioner’s motion as seeks a judgment against respondents on these grounds.”

It was undisputed that respondents’ attorneys had not provided the petitioner with “updates of relocation efforts” every month since execution of the stipulation. Thus, the court held that the respondents were “now in compliance with the stipulation and ‘appropriate relief’ for respondents’ counsels’ failure to report every month does not include respondents’ eviction.” Therefore, the court granted the petitioners’ motion “solely to the extent of directing respondents’ counsel to comply with the monthly reporting requirements of the stipulation during the duration of the occupancy of any of respondents in the subject building.”

Comment: Of the original 18 respondents, nine have already relocated. It is always a “challenge” to relocate tenants, regardless of whether they are commercial, industrial, retail or residential tenants. In my experience, relocation of residential tenants can be very challenging. Sometimes, the “discussion” is only about a money settlement, which does not include an owner’s obligation to relocate a tenant. When relocation involves the needs of indigent, elderly and disabled individuals and subsidies or other public assistance may be required, relocation may require the cooperation of governmental agencies. Some agencies work faster than other agencies and sometimes the agencies lack the resources needed to accomplish the relocation.

Additionally, some tenants may be unreasonable as to what constitutes a reasonably comparable apartment. If the size is approximately the same, the configuration may be different. If the size and the configuration are acceptable, the view from the new apartment may be unacceptable. A frequent and understandable objection from tenants is that a new apartment is not in the same neighborhood. What is “nearby” may involve a subjective judgment. People often want to continue attending their nearby place of worship and patronizing their local merchants. They often want to or need to remain close to their relatives and friends and want mass transportation that is convenient for their work, friends, relatives and/or needed services.

Commercial tenants may also have special needs, such as minimum size loading docks, access to streets, visibility to the public or other special requirements that require land use applications (a need for a special permit or variance) and therefore, relocation of commercial tenants could also present substantial challenges.

Given the foregoing, most agreements to relocate will specify outside dates and incorporate strong penalty provisions. Some relocation agreements provide that the premises must be left “broom clean” and that even a “de minimis” failure to comply with the terms of the agreement will constitute a material breach of the agreement.

In the subject case, each party was represented by counsel and the relocation agreement did not specify an outside date. Rather, the respondents represented that they were “diligently seeking relocation,” they agreed to cooperate with their representative in such effort and their representative was to provide monthly updates to the petitioners.

The court recognized that under decisional law, the failure to incorporate a firm outside date for the relocation, meant that relocation had to occur within a “reasonable” time period. Legal precedent held that in determining what is reasonable, courts may consider many factors. Here, the court considered the extensively negotiated language of the stipulation, the number of applications the respondents had made for alternate housing, equities involving elderly, indigent and disabled tenants, diligent efforts to relocate the tenants, etc. The court concluded that the tenants are obligated to provide reasonable cooperation, but that under the circumstances, the “reasonable time” deadline had not yet been breached.

Some may question why an outside date for the relocation was not incorporated into the agreement. The absence of a relocation deadline may not have been an oversight or the product of inartful drafting. Rather, it may have been because everyone recognized the challenges of relocating these tenancies. The respondents may have refused to agree to a specific date, because they knew that they may not be able to comply with a fixed date. It is possible that the petitioner knowingly accepted such fact and simply negotiated the best agreement that it could achieve.

St. Joseph Immigrant Home v. Bulong, 77560/2014, NYLJ 1202774049499, at *1 (Civ., NY, Decided Oct. 27, 2016), Stoller, J.