Nathan Hale Gardens, Inc. v. Letzt

Order, Supreme Court, Bronx County, entered October 10, 1973, denying plaintiff’s motion for summary judgment, unanimously reversed, on the law, the motion granted and the counterclaim dismissed, without costs or disbursements. Nathan Hale Gardens, Inc., (landlord) had entered into a lease agreement with the defendant tenant. One clause of that agreement provided, inter alia, that the tenant was prohibited from installing or operating any clothes-washing machines or elothes-drying machines without the prior written consent of the landlord. The tenant nonetheless maintained both a clothes washer and dryer and continued to do so, though told by the landlord’s agent that he was in violation of the terms of the lease agreement. The landlord, in its complaint, asked for injunctive relief. The tenant interposed an answer alleging harassment as well as oral waiver by the landlord, and further alleging as a counterclaim the cost of the machinery 612 purchased in reliance on the landlord’s consent. After issue was joined, the landlord moved for summary judgment, which motion was denied by Special Term. Maintenance of a washing machine absent any agreement in the lease to the contrary is not a substantial violation of the tenancy (cf. Akos Realty Corp. v. Mixon, 70 Misc 2d 806). However, in the mase at bar, the lease provides specifically that the landlord is entitled to pursue the remedy of injunctive relief should the tenant breach the agreement. We have heretofore given effect to such clauses (cf. 930 Fifth Corp. v. King, 40 A D 2d 140) and have rejected tenants’ claims of waiver and nonenforcement against other tenants similarly situated (cf. 930 Fifth Corp. v. King, supra; Mutual Redevelopment Mouses v. Balducci, 37 A D 2d 943). Accordingly, the landlord was entitled to summary judgment. Furthermore, the counterclaim of the tenant for damages must be dismissed as barred by the lease agreement. Concur—Nunez, J. P., Kupferman, Lupiano, Steuer and Lane, JJ.