Park West Village v. Lewis

— Order of the Supreme Court, Appellate Term, First Department, entered on July 14, 1982, which reversed a judgment of the Civil Court, New York County (Ralph Waldo Sparks, J.), entered on October 5, 1981, and directed final judgment in favor of the tenant dismissing the petition, is affirmed, without costs. Since June 1, 1969, respondent tenant Barbara Lewis has lived in a second-floor rent-stabilized apartment at 788 Columbus Avenue in Manhattan. Her lease contains a clause which states that: “Tenant shall not use or occupy the apartment or allow the apartment to be used * * * for any purpose other than as and for a private dwelling-place”. During her lengthy residence in this apartment, respondent who has a PhD in clinical psychology, has counseled clients in her living room. Her practice is confined to an average of only 15 patients per week, amounting to no more than two or three client visits each day. Moreover, respondent’s practice is not merely modest, but unobstructive as well. Her patients suffer from relatively moderate psychological disorders, and the treatment which is provided to them consists entirely of conversational therapy. In that regard, respondent does not prescribe or dispense any medication, nor does she employ machinery or equipment of any kind. Her apartment has not been remodeled to accommodate the practice, and because of the short distance to the second floor, her patients rarely use the elevator. In all the years that respondent has performed her service, she has never received a single complaint from any of the other tenants in the building. Clearly, not all business pursuits entail a violation of the lease. For example, a writer or a painter would be authorized to carry out his or her profession without threat of eviction. Presumably, there would also be no objection to a tenant’s bringing some work home from the office or to a lawyer’s inviting an occasional client to his or her apartment for a consultation. The fact is that most people engage in a certain degree of business activity in their home. What is crucial is not whether a tenant conducts some business in his or her apartment but that the extent of that undertaking be maintained within reasonable bounds. In that connection, an examination of the- record herein fails to reveal a scintilla of evidence that respondent’s very limited practice has created any disturbance or nuisance, impaired the value of the landlord’s property, or in any manner altered the residential character of the dwelling unit. The landlord has not demonstrated the existence of any security problems or even that management or the other tenants are in the least inconvenienced by respondent’s small number of weekly visitors. In fact, the only proof introduced at trial was the lease and respondent’s testimony concerning the nature of her practice, which is not a matter of dispute between the parties. Pursuant to subdivision A of section 53 of the Code of the Rent Stabilization Association of New York City, Inc., a tenant may not be evicted unless he or she is in violation of a “substantial obligation” of the tenancy. According to the Court of Appeals, purely technical violations which cause the landlord no actual loss do not constitute substantial breaches of a lease. (Matter of Park East Land Corp. v Finkelstein, 299 NY 70.) Applying this standard, courts have consistently held that the limited use of a primary residence for some business purposes does not change the residential character of a dwelling (Nissen v Wang, 105 Mise 2d 251; Park Towers South Co. vA-LalanImports, 103 Mise 2d 565; M.D.S. Props, v Rich, NYU, Oct. 2,1981, p 4, col 1 [App Term, 1st Dept]; Feil v Zuckerman, NYU, Nov. 26, 1979, p 6, col 2 [App Term, 1st Dept]; see, also, Fleischer v Third Brevoort Corp., 40 AD2d 661). There is nothing in the recent decision by the Court of Appeals in Hudson View Props, v Weiss (59 NY2d 733), which would support the proposition that a tenant who has carried out relatively minor business activities in his or her home is in substantial breach of the lease such as would warrant eviction. Consequently, the Appellate Term 811 appropriately directed final judgment in favor of the tenant dismissing the petition. Concur — Milonas and Silverman, JJ. Sandler, J. P., concurs in a memorandum and Sullivan and Ross, JJ., dissent in a memorandum by Ross, J., as follows: