Petitioner's Exhibits
Certified Deed 1
Certified Multiple Dwelling Registration 2
2002 Certified DHCR Rent Registration 3
2003 Certified DHCR Rent Registration 4
Original Lease 5
Lease Renewal 6
Payroll Change Form 7
Beeper Agreement dated 12/03/01 8
Employment Eligibility Verification dated 12/03/01 9
W-4 Tax Form dated 12/10/01 10
Nextel Motorola agreement 11
Letter to Respondent dated 11/27/01 12
Respondent's Exhibits
Dish Network Billing StatementsB 1-20

The petitioner in the underlying holdover proceeding seeks to terminate the respondent's tenancy on the ground that she installed a satellite dish on the roof of the premises without written [*2]permission in violation of her lease agreement. The respondent is a Section 8 tenant who resides at 2201 Walton Avenue, Apartment 5E, in Bronx County. A copy of the papers in the underlying holdover proceeding was served on the New York City Housing Authority ("NYCHA") pursuant to the terms of her lease agreement, which expired on 6/30/03. The respondent contends that she received permission to install the dish and raises a waiver defense. The proceeding was transferred to Part D for trial on 1/20/04.

The petitioner purchased the subject premises from the City of New York in 1990. (Pet. Exhibit 1.) The Board of Estimate resolution that approved the sale requires that at least 70% of the tenants residing in the building be low income families or persons as defined by 24 CFR §13.102, unless a lower percentage is approved by the New York City Department of Housing Preservation and Development (("HPD"). (Pet. Exhibit 1 at 8.) The deed imposes other covenants upon the petitioner including audit requirements and stringent housing quality standards. (Pet. Exhibit 1 at 1.) NYCHA serves as the public housing agency ("PHA") that administers the petitioner's Section 8 Moderate Rehabilitation Housing Program and the respondent's federal subsidy.

NYCHA provided the Section 8 rental agreement signed by the parties. The lease provides that the petitioner may not refuse to renew a lease except for a) serious or repeated violations of the terms and conditions of the Lease, b) violations of applicable Federal, State of local law, or c) other good cause." (Pet. Exhibit 5 at 1.) Paragraph 3 of the lease states, in pertinent part, that the

Tenant shall not install or use a...television or radio antenna in the apartment or outside thereof without the Landlord's consent in writing. Violation by Tenant of any restrictions contained in this paragraph shall be deemed a violation by Tenant of a substantial obligation of this lease and shall entitle Landlord to terminate the tenancy in the manner herein provided.

(Pet. Exhibit 5 at 2.)

A non-waiver clause set forth in paragraph 21 cautions that:

The failure of the Landlord to insist upon a strict performance of any of the covenants herein shall not be deemed a waiver of such covenants. No representations or promises have been made except those herein contained. No modification of any provision hereof and no cancellation or surrender hereof shall be valid unless in writing, and signed by the parties. [*3]

(Pet. Exhibit 5 at 3.)

Petitioner's witness Katherine Lugo testified that she is the property manager for the subject premises. A wire runs from the respondent's window in Apartment 5E to a satellite dish installed on the building roof. Ms. Lugo introduced into evidence petitioner's letter to respondent dated 11/27/01 demanding the removal of her satellite dish. The letter states, in pertinent part, "Please be advised that you are in violation of your lease, which prohibits affixing anything to the building without prior written consent from the landlord." (Pet. Exhibit 12.) Twenty-two months later, a notice to cure dated 9/17/03 was served upon the respondent. No testimony or other trial evidence explained the petitioner's delay in seeking redress, although the notice to cure referenced a prior holdover proceeding.

The respondent never testified. The respondent's sole witness, George Smith, lives with her at the subject premises. Mr. Smith introduced into evidence 20 billing statements from Dish Network to establish that the satellite dish has been in use since 5/22/01. Mr. Smith testified that Fred Brown, the petitioner's employee, was in the building in May 2001 when the satellite company arrived to install the dish. Mr. Smith asked Mr. Brown to join him and an unidentified neighbor on the building roof while the dish was installed. According to Mr. Smith, Mr. Brown gave the respondent written permission pursuant to the lease to install and use the dish.

The best evidence rule requires that a party who seeks to prove the contents of a writing produce the original writing or satisfactorily explain its absence. (Prince, Richardson on Evidence §10-101 [Farrell 11th ed].) The rule guards against fraud perpetrated through the misuse of sophisticated copying equipment. (Schozer v Wm Penn Life Ins, 84 NY2d 639 [1994].) Courts are required to give "careful consideration to the possible motivation for the nonproduction of (an) original" document. (Schozer, 84 NY2d at 644.) In the case at bar, a copy of Mr. Brown's letter was proffered as proof that the petitioner gave the respondent written permission to install the satellite dish in May 2001. According to the witness, the original letter was submitted to Dish Network. The satellite company was never subpoenaed, however, to produce the original document. After determining that the respondent's foundation was inadequate, the Court deemed the copy inadmissible pursuant to the best evidence rule.

The petitioner re-called its building agent to the stand to establish that Mr. Brown, its employee, never authorized the installation of the satellite dish in writing or otherwise. Ms. Lugo, through her credible testimony and documentary evidence consisting of a payroll form (Pet. Exhibit 7), beeper agreement (Pet. Exhibit 8), employment eligibility verification form (Pet. Exhibit 9), W-4 Tax Form (Pet. Exhibit 10) and cellular phone agreement (Pet. Exhibit 11), established that Fred Brown was hired on 12/03/01, seven months after he purportedly authorized the installation of the respondent's satellite dish. The respondent offered no rebuttal testimony. [*4]

The parties agree that the satellite dish was openly and notoriously installed on the roof of the subject premises. The respondent interposes a waiver defense based on the petitioner's delay in waiting two years before commencing the underlying holdover proceeding in 2003. Here, however, the non-waiver clause in the respondent's lease (Pet. Exhibit 5 at p3, ¶21) is dispositive since "the Section 8 lease alone sets forth the complete terms of agreement between the parties." (Dick v Strachan, 136 Misc2d 79 [Civ Ct, NY County 1987, Goldberg, J.], citing Axelrod v Various Tenants of Delano Village, 123 Misc2d 922 [1984] and Pleasant East Assoc v Cabrera, 124 Misc2d 877 [1984].)

While it is undisputed that satellite dishes provide excellent television reception and afford viewers a vast range of programming, no per se right to install satellite dishes on the exterior of a building is accorded to apartment dwellers. (Goldstein v Alweiss, 196 Misc 513 [App Term, 2d Dept 1949]; 2682 Kingsbridge Assoc v Martinez, NYLJ, Jan. 22, 2003, p 20 at 6 [Civ Ct, Bronx County, Malatzky, J.]; Urban Horizons Tax Credit Fund, L.P. v Zarick, 195 Misc2d 779 [Civ Ct, Bronx County 2003, Rodriguez, J.].) In Loretto v Teleprompter Manhattan CATV Corp, the U.S. Supreme Court invalidated a New York statute that barred landlords from interfering with the installation of cable television facilities on their property or premises upon payment of a one-time $1 nominal fee by the tenant or cable company. In the fact pattern presented to the high court, a cable less than a half-inch wide in diameter and approximately 30 feet in length ran up the side of the building to the appellant-owner's roof. In a majority opinion delivered by Justice Thurgood Marshall, the Supreme Court overruled the New York State Court of Appeals and determined that the cable installation was a taking without just compensation because of the permanency of the physical occupation. Finding that the narrow width of the cable was inconsequential, the Court ruled that the "constitutional protection for the rights of private property cannot be made to depend on the size of the area permanently occupied." (Loretto v Teleprompter Manhattan CATV Corp, 458 US 419, 436 [1982].)

More recently, Section 207 of the Telecommunications Act of 1996 was amended to provide tenants with a limited right to install reception devices "wherever they rent space outside of a building, such as balconies, balcony railings, patios, yards, gardens or any other similar areas." (13 FCCR 23874, 23874[1].) The respondent's satellite dish installation, which runs from her window to the building roof, does not fall into this narrow exception.

The petitioner proved its prima facie case by a preponderance of the evidence through the credible testimony of its witness and documentation. The respondent was unable to establish that permission for the satellite dish was granted. Her waiver defense is unavailable by virtue of her Section 8 tenancy. After careful review and analysis, this Court determines that the respondent violated a substantial obligation of her tenancy and awards a final judgment of possession to the petitioner. In accordance with the provision on page one of the respondent's lease that states that "nothing in this Lease shall deprive a Section 8 tenant of any right afforded by State or local law," issuance of the warrant of eviction is stayed 10 days pursuant to RPAPL §753 to allow the respondent one final opportunity to remove her satellite dish. [*5]

This constitutes the decision and order of the Court.

Dated: March 15, 2004
So ordered,
Hon. Lizbeth González, JHC