34 Crescent St. Assoc. LLC v U.S. Fish Depot Corp. (2002 NY Slip Op 50720(U))

34 CRESCENT STREET ASSOCIATES LLC., Respondent, against

U.S. FISH DEPOT CORP. TAMER M. ELKILANY, MOHAMED M. ELKILANY, Appellants.

Motion by tenants-appellants for summary reversal and for other relief granted only with respect to so much of the order of the Civil Court, Queens County (A. Agate, J.), dated August 23, 2002, as denied that portion of their application that sought access to the premises through the rear yard, said portion of the order is unanimously reversed without costs, and motion granted to the extent of directing landlord-respondent to immediately restore such access to tenants. After tenants were evicted from their fish store pursuant to a warrant issued in this commercial nonpayment proceeding, they moved to be restored to possession, asserting, inter alia, that they had not received the marshal's notice, which, together with all the other pleadings and papers in this proceeding, proved to have a defective address for the subject RE:34 CRESCENT STREET ASSOCIATES LLC. U.S. FISH DEPOT CORP. TAMER M. ELKILANY, MOHAMED M. ELKILANY NO. 2002-1297 Q C

premises. In response to the motion, landlord consented to discontinue the proceeding based on the address defect and was directed by the court to restore tenants to possession. Thereafter, tenants moved to be restored to "full possession", including access to the premises through the rear yard for deliveries and for overnight parking of their truck. They asserted that they were entitled to such access pursuant to an understanding with the prior owner; that such access was vital to the operation of their business, which included a wholesale operation in the rear and a restaurant in the front; and that their business would most likely die if such access were not restored to them. The Civil Court denied their motion because tenants' lease did not mention any right to access through the rear yard. Tenants appealed and now move for summary reversal.

In our view, the remedy of summary reversal is appropriate with respect to so much of tenants' application as sought access to the premises through the rear yard because of the existence of clear legal error and of exigent circumstances (see e.g. People v Green, 253 AD2d 891; People v Flow, 142 AD2d 539; Cruz v Chan, NYLJ, Apr. 16, 2001 [App Term, 2d & 11th Jud Dists]). Inasmuch as access to the premises through the rear yard is necessary to tenants' full enjoyment of the premises, such access was included in the lease as a matter of right (see e.g. Brendlin v Beers, 144 App Div 403 [a lease "confers upon the tenant ... an easement of ingress and egress by the usual way"]; see generally Annotation, Easements or Privileges of Tenant of Part of Building as to Other Parts Not Included In Lease, 24 ALR 2d 123, § 7). The applicable rule was well stated in Mayer v Hazzard (10 Cal App 2d 1, 3, 51 P2d 189, 190):

"Rights of ingress or egress by the usual way pass to the tenant, although not specifically mentioned

RE:34 CRESCENT STREET ASSOCIATES LLC. v

U.S. FISH DEPOT CORP.

[*2]

TAMER M. ELKILANY, MOHAMED M. ELKILANY

NO. 2002-1297 Q C

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in the lease, or the word 'appurtenances' be not used, under the general rule that those rights essential to the use of the demised premises pass as appurtenant thereto. A tenant is entitled to the maintenance of an entrance which is necessary to the full enjoyment of his use of the property, although it may not be the only means of access" (emphasis added).

Accordingly, landlord is directed to immediately restore to tenants access to the premises through the rear yard including for deliveries. We note that to deny such access through the back door may well raise fire safety concerns.

Tenants' request for summary reversal of so much of the Civil Court order as denied their application for the restoration of overnight parking is denied as tenants have not adequately shown either clear legal error or exigency with respect to such parking (cf. Doyle v Lord, 64 NY 432), and review thereof shall await disposition of the remaining portion of the appeal.

Decision Date: November 07, 2002