In this holdover proceeding, petitioner alleges that respondent breached her lease by substantially altering her bathroom without petitioner's consent and in violation of Department of Buildings and Landmarks Preservation Commission regulations. Respondent argues that most of the alterations were insubstantial and that she is entitled to cure any alterations this court deems substantial. Respondent hopes to legalize any violations of Department of Buildings and Landmarks Preservation Commission regulations by submitting plans and securing permits from both agencies and to do any work necessary to cure.

Findings of Fact

A trial, all digitally recorded, was held on September 26, 2006, October 4, 2006, November 15, 2006, December 13, 2006, and January 31, 2007. Testifying for petitioner at trial were superintendent Adam Brzostowski, petitioner's agent Robert Gorden, and architect Fred Maddox. Testifying for respondent were herself, plumber Paul Soto, and architect Gerald Goldstein. The court credits their testimony.

The trial evidence proved the following. Respondent is a 69-year-old tenant of a rent-stabilized apartment located at 259 West 12th Street, apartment 3A, in New York County. She has resided in her apartment for 37 years. She renovated her bathroom in January 2006. She removed and replaced four walls; installed tiles on the new walls; replaced a sink with a newer model; replaced a medicine cabinet with a larger model; removed a recessed clothes-hamper; and relocated a light fixture. Respondent made these alterations allegedly in violation of her lease's no-alterations clause. [*2]

The no-alterations clause of respondent's lease provides:

"Tenant shall make no changes, alterations or improvements of any kind in or to the Demise Premises without the Landlord's prior written consent. Tenant shall not mark, paint, wallpaper, affix any flooring to, drill into, or in any way deface any part of the Demise Premises . . . ."

Respondent completed all these alterations without obtaining petitioner's consent and without obtaining the necessary permits and approvals from the Department of Buildings and the Landmarks Preservation Commission.

Brzostowski testified that the fixtures in respondent's bathroom were old but functional. He recalled repairing the sink shortly before respondent replaced it. He testified that in early 2006, he saw renovations being done in respondent's bathroom. Introduced into evidence through him were photographs of what he saw: the bathroom walls stripped to the bricks and studs; the sink and medicine cabinet removed with an opening cut for a new cabinet and sink; and new sheetrock and tiles installed throughout the bathroom.

Gorden testified that petititioner had never received any complaints about respondent's bathroom. He believed that the sink, cabinet, and hamper were fully functional. He added that

respondent never asked for petitioner's permission to renovate. According to Gorden, respondent never gave petitioner any construction plans or insurance certificates relating to any renovation.

Maddox testified that he has renovated numerous apartments in Manhattan and has experience and familiarity with the Department of Buildings' requirements. He reviewed photographs of respondent's renovation and identified multiple violations of the Department of Buildings' and the Landmarks Preservation Commission's regulations. He testified about the procedures that must be followed to start a renovation project, such as filing detailed plans with the Department of Buildings before one proceeds with a renovation and using licensed contractors who have liability insurance. He testified that a tenant who decides to renovate must comply strictly with Department of Buildings regulations to avoid potential hazards. The failure to comply with these regulations could lead to exposure to asbestos if an asbestos test is not conducted before work begins and to the risk of fire if the contractor fails to insure that the sheetrock installed has the proper fire rating. He noted that to legalize the work retroactively, a tenant could obtain a permit from the Department of Buildings after a renovation is completed. He further testified that respondent's removal of walls required the Landmarks Preservation Commission's approval and a "Certificate of No Effect." He added that alterations that are cosmetic do not require permits or approvals.

Respondent testified that she had chronic problems with the bathroom sink. She hired Soto, a licensed plumber, to fix it after Brzostowski and another employee of petitioner had worked on it without success. She testified that the medicine cabinet and hamper were peeling and that the doors of the cabinet and hamper were inoperable. She described the bathroom walls as discolored with some tiles cracked and the grout between the tiles blackened by what appeared to be mold. She conceded that she never complained to petitioner about her bathroom and that she decided to renovate without seeking its permission. Respondent did not offer any [*3]proof at trial that her contractor was licensed, insured, or had secured permits and approvals from the Department of Buildings or Landmarks Preservation Commission.

Soto testified that he replaced the bathroom sink because it was cracked. He added that replacing the sink did not require a licensed plumber or a permit.

Goldstein testified that complying with Department of Buildings regulations is essential. He added that without conducting an asbestos test, he could not determine what kind of insulation was inside respondent's bathroom walls. He also did not know the fire rating of the sheetrock that respondent installed. He added, however, that even after respondent's renovation, she could still do an asbestos test and still obtain a permit from the Department of Buildings to legalize the existing work retroactively. He testified that the Department of Buildings could either direct corrective construction or deem the completed construction sufficient and issue a permit. He added that the other alterations — the sink, medicine cabinet, and light fixture — were cosmetic and did not require a permit.

Conclusions of Law

Three issues are before the court. The first is whether respondent substantially violated her lease when she renovated her bathroom. The second is whether respondent substantially violated her lease by conducting the renovation in violation of Department of Buildings and Landmarks Preservation Commission regulations. The third is whether respondent is entitled to cure any of the violations the court deems substantial.

The court finds that respondent substantially violated the no-alterations clause of her lease by making substantial alterations that caused lasting or permanent injury to the leased premises. For a "no-alterations" clause to be violated, the alteration must either have (1) materially changed the nature and character of the leased premises; or (2) caused lasting or permanent injury to the leased premises. (Solow v Lubliner, NYLJ, June 6, 1990, at 21, col 2 [App Term 1st Dept, per curiam] [finding that by installing mirrored room divider and mirrors on apartment's walls, tenant did not make substantial alterations].) A material change to the nature and character of the premises exists when a tenant creates space or changes the apartment's configuration. (DeLorenzo v DiBlasi, NYLJ, Sept. 27, 1988, at 17, col 3 [App Term 1st Dept, per curiam] [finding that tenant materially changed apartment's character by adding loft platform and stairway]; Rutherford Place, LLC v Pande, 2004 NY Slip Op 50173[U] at *6, 2 Misc 3d 1007A, 2004 WL 690239, at *5, 2004 NY Misc LEXIS 252, at *6 [Civ Ct NY County 2004] [holding that tenant materially changed apartment by converting one-bedroom apartment into three-bedroom].) Unlike the tenants in DeLorenzo and Pande, respondent did not create more space or change the apartment's configuration. She confined the renovations to the bathroom and did not change the location of the four walls. She did not materially change the apartment's nature and character.

The court finds, however, that respondent's demolishing and replacing of the bathroom walls was a substantial alteration. It caused a lasting or permanent injury to the premises. A [*4]lasting or permanent injury arises when an alteration is "not readily removable both in terms of removal cost and manpower." (DeLorenzo, NYLJ, Sept. 27, 1988, at 17, col 3; accord Freehold Investments v Richstone, 34 NY2d 612 [1974, mem], revg 42 AD2d 696 [1st Dept 1973, mem], revg 72 Misc 2d 624, 626 [App Term, 1st Dept 1973, per curiam] [finding that tenant made substantial alterations by installing new kitchen cabinets and new hung ceiling with recessed light fixtures that could not be removed without seriously damaging apartment].)

Respondent's four new bathroom walls, with new sheetrock and new tiles, cannot be removed without substantial removal cost and manpower. (See DeLorenzo, NYLJ, Sept. 27, 1988, at 17, col 3.) They are not insubstantial changes. (See e.g. Sternklar v 19 E. 80th St. Assocs., 171 AD2d 528, 529 [1st Dept 1991, mem] [finding that tenant did not make substantial alterations by installing Japanese paper screens]; Solow, NYLJ, June 6, 1990, at 21, col 2.) Both architectural experts, Maddox and Goldstein, testified that respondent's renovation of the bathroom walls required a licensed contractor with liability insurance and permission and approval from the Department of Buildings and the Landmarks Preservation Commission. By removing and replacing the bathroom walls, respondent substantially altered the apartment.

Respondent also substantially violated her lease by renovating the bathroom walls in violation of Department of Buildings' and Landmarks Preservation Commission's regulations. She failed to file plans and secure necessary permits or approval from either agency. She never conducted an asbestos test before removing the walls. She never insured that the new sheetrock she installed had the proper fire rating to contain a fire. She did not use a licensed contractor who had the requisite liability insurance. Both experts testified about the importance of strictly complying with both agencies' regulations to avoid hazards. They testified that they had never proceeded with a renovation similar to respondent's without following these essential procedures. By not following the agencies' requirements, respondent exposed the residents of the building to dangers like asbestos exposure and fire. In addition, she exposed the landlord to numerous violations, fines, and lawsuits.

The court finds that the other alterations — replacing the medicine cabinet and sink, moving the light fixture, and removing the recessed clothes-hamper — were insubstantial changes and minor cosmetic improvements. A tenant may update and replace appliances and make minor improvements without violating a lease's no-alterations clause. (Icolad Assocs. v Frazer, NYLJ, Apr. 17, 1990, at 21, col 2 [App Term 1st Dept, per curiam] [holding that tenant did not make substantial alterations by replacing old kitchen and bathroom appliances with new, better-functioning models].) Respondent's medicine cabinet, hamper, and sink, although functional, were more than 37 years old. The doors of the medicine cabinet and hamper did not work, and the wall sink was cracked. Replacing these fixtures for better-functioning models did not materially change the apartment's nature and character. In addition, both architectural experts testified that the Department of Buildings and the Landmarks Preservation Commission do not require permits or approvals to effect these alterations. Soto, the plumber, corroborated this testimony. He explained that replacing the sink did not require a licensed plumber or a permit. [*5]

Respondent is entitled to a 10-day stay to cure the substantial violations — the bathroom walls' renovation and the violations of the Department of Buildings' and Landmarks Preservation Commission's regulations. RPAPL 753 (4) provides when "the tenant or lessee has breached a provision of the lease, the court shall grant a ten day stay of issuance of the warrant, during which time the respondent may correct such breach." To cure the violations of the Department of Buildings' and Landmarks Preservation Commission's regulations, respondent must legalize the bathroom walls' substantial alterations. This includes but is not limited to submitting all required plans and paperwork and securing the proper permits and approvals from both agencies. Respondent must follow their directives about any alterations she must make to cure the bathroom walls. Because the court does not know what would be involved or what corrections should be made to the walls, this court cannot explain further how respondent should cure this substantial alteration. The other alterations — the medicine cabinet, the bathroom sink, the clothes-hamper, and the light fixture — are not substantial violations and do not require a cure.

The court awards a final judgment of possession to petitioner. Warrant to issue forthwith. Execution stayed for 10 days from service of this decision with notice of entry for respondent to cure.

This opinion is without prejudice to petitioner's seeking attorney fees in a separate motion.

This opinion is the court's decision and order.

Dated: February 20, 2007

J.H.C.