Kohman v. Rochambeau Realty & Development Corp.

Order, Supreme Court, New York County (Marilyn Shafer, J.), entered April 15, 2003, which denied plaintiff’s motion and defendant’s cross motion for summary judgment, affirmed, without costs. [152] Plaintiff has been a residential tenant in the ground-floor apartment at 23 West 89th Street in Manhattan since he took occupancy of the apartment with his mother, the original lessee, pursuant to a lease dated July 1, 1971. After his mother died in July 1998, plaintiff came into possession of the rent-regulated premises as her successor. Defendant has been the owner of the building since 1988. The lease describes the premises as “the apartment known as Apartment Garden Floor Through on the Ground floor.” Plaintiff avers that the apartment has always included the yard at the rear and side of the building, that he and his family have had exclusive use and control of the yard since the inception of their tenancy, that neither defendant nor any of its predecessors ever asserted any right to the use of the yard or maintained or cared for it until the events that led to this lawsuit, and that, until July 2002, when defendant constructed a stairwell from the basement to the yard, the only means of access to the yard was through his apartment. Defendant argues that the lease does not indicate that the rear yard is part of the leasehold, and contends that plaintiffs use of the yard was granted by license that could be revoked at any time. Indeed, by letter dated July 31, 2002, defendant advised plaintiff that his “license to use and occupy the rear yard at the building located at 23 West 89th Street, New York, NY has now been revoked,” and that plaintiff was “no longer allowed to enter into or use the rear yard and must refrain from any and all use of the rear yard.” Plaintiff argues that if the yard, or garden, had not been included in the leased premises, the apartment would have been described simply as “the ground floor apartment,” there being only one ground floor apartment in the building. Defendant argues that the word “garden” in the description of the leased premises merely describes the location of the apartment within the building. The motion court correctly found that each party’s interpretation of the key words, “Apartment Garden Floor Through on the Ground floor,” was reasonable and properly denied summary judgment to both parties on the ground that the lease provision is ambiguous and the intent of the parties must be resolved at trial from disputed evidence or from inferences outside the written words (see Time Warner Entertainment Co. v Brustowsky, 221 AD2d 268 [1995]). We note, in addition, that defendant’s argument that plaintiffs use of the yard is consistent with the concept of a revocable license supports the determination that the lease is ambigú [153] ous. “A license is a personal, revocable and non-assignable privilege, conferred either by writing or parol, to do one or more acts upon land without possessing any interest therein” (Greenwood Lake & Port Jervis R.R. Co. v New York & Greenwood Lake R.R. Co., 134 NY 435, 440 [1892]). The lease itself provides that “no rights, easements or licenses are acquired by Tenant by implication or otherwise except as expressly set forth in the provisions of this lease” (emphasis added), and defendant does not identify the source of the license as something other than the lease. Concur—Buckley, EJ., Ellerin and Williams, JJ.