BACKGROUND

The underlying summary holdover proceeding was commenced by NORTH TOWN ROOSEVELT LLC (Petitioner) against LLOYD GLEN(Respondent) seeking to regain possession of 580 Main Street - Apt. 452, New York, New York 10044 (Subject Premises) based on the allegations that Respondent, the tenant of record, has breached his lease by failing to provide access to Petitioner to replace the heating system located in and servicing the Subject Premises.

Petitioner issued a Ten Day Notice to Cure dated April 1, 2014. The Notice alleged that Respondent was violating paragraph 14 of his lease agreement, as well as the building rules and [*2]regulations. The Notice asserted Petitioner was seeking access "... to complete the heating system overhaul " and that access had been requested on July 26, 2013. The Notice further asserted that Respondent did not provide access on said date, and that Petitioner made subsequent phone calls and sent additional notices requesting access. Finally, the Notice asserts that access had been agreed to on March 15, 2014, but that Respondent refused to allow for the completion of the work. The Notice required Respondent to cure the breach by April 17, 2014. The Notice was served on April 1, 2014 by regular mail.

The file also contains an "Amended" 10 day notice of termination issued July 28, 2014, terminating Respondent's tenancy as of August 16, 2014.^[FN1] The proceeding was initially returnable on September 16, 2014.

No answer was filed or asserted by Respondent, and a general denial is deemed asserted on his behalf.

On January 14, 2015, the proceeding was assigned to Part L for trial. The trial commenced and concluded on said date, and the court reserved decision.

Petitioner is the landlord of the Subject Premises pursuant to a lease (Lease) dated December 1, 2005 (Ex 1).

The building was formerly a Mitchell Lama building which exited from the program in or around 2005. In connection with the exit from the program, the landlord and Tenants Association entered into an agreement regarding rent subsidies to be administered by the landlord to qualified tenants (Ex B). The agreement also provides some benefits to tenants that mirror rights under rent stabilization, such as limiting rent increases, and allowing for succession. Finally, Article VI of the agreement provides that Petitioner shall maintain services furnished, or required to be furnished by state law, local law, ordinance or regulation applicable to the premises as of the Exit Date.

Respondent is the tenant of record for the Subject Premises. Respondent is 65 years old and has lived in the complex most of his life. Respondent has never been billed for electricity for the Subject Premises, electricity is included in the rent. The last renewal between the parties is dated December 1, 2011, and expired November 30, 2012 (Ex 3). Petitioner did not renew the lease because of Respondent's refusal to provide access.

Paragraph 14 of the Lease provides:

Landlord or persons authorized by Landlord may enter the Apartment at reasonable hours to: repair, inspect, install or work on master antennas or other systems or equipment and perform other work that Landlord decides is necessary or desirable. Failure of Tenant to provide access to Landlord shall be considered a material violation of this lease and Landlord shall have the right to immediately exercise its termination rights under Section 27 of this Lease, as well as any other rights or remedies Landlord shall have under law and equity. ... Entry by Landlord must be on reasonable prior notice except in emergency.

Paragraph 27 (6) of the Lease provides that failure to provide Petitioner with access in accordance with paragraph 14 constitutes a default which Respondent must cure within three [*3]days or be subject to termination.

There are 18 rules and regulations annexed to the Lease, none of them pertains to access for repairs or improvements.

The complex in which the Subject Premises is located is comprised of 9 buildings and 1003 units.

On October 11, 2011, the Public Service Commission (PSC) issued an order reinstating approval for submetering at the complex "with conditions" (Ex 1). The Order provides that Petitioner had applied for submetering to be allowed in 2008. The Order notes that most of the tenants in the complex receive rent subsidies, are low income households and in 2009 the owner was directed to submit revised submetreing plans to incorporate concerns raised by and on behalf the tenants.

The four conditions for the revised plans were: that the tenants not be disadvantaged financially as a result of the submetering; that the installation of energy efficient measures be implemented; that Petitioner install " ... a thermostat in each apartment so the tenant can control the resistance heating units in his or her apartment" ; and that tenants receive additional information describing the measures they can take to reduce their electricity consumption.

The Order also directed that certain subsidies be made available to qualifying tenants to pay for electricity once tenants started to be billed for it.

PSC issued a further order on February 20, 2014, "Clarifying Conditions of Submetering Approval at North Town Roosevelt." This order was issued in response to a petition by Petitioner requesting a revision of the original submetering plans, to submeter only plug load electricity (e.g. television, refrigerator, lights), but not to hold tenants responsible for paying electricity charges associated with heating. The revised plan was approved.

Approximately two years ago, Petitioner began to change the units in each apartment in the complex. The building in which the Subject Premises is located was the last building in the complex to undergo the conversion. Out of the 1003 units in the complex, the work has been completed in 995 of the units.

The original heaters in the apartments were electric heaters installed in 1974. Petitioner is replacing these units with new units, which are remotely controlled as far as maximum temperatures by management, but which also have thermostats in each apartment for the tenant to control the temperature up to the maximum allowable temperature. The maximum temperature is set at 74 degrees from 6 am to 10 pm, and 70 degrees overnight during the heating season.

The Project Manager attempted to gain access to the Subject Premises to change the heating system, on July 26, 2013, by knocking on the door. No on answered. There was no evidence that Petitioner had given Respondent advance notice of the July 26, 2013 access date.

Petitioner sent Respondent a letter requesting access in October 2013 (Ex 4). Respondent testified that he never received this letter. However, Respondent did schedule an appointment for access with management for March 15, 2014. This was a Saturday access date set to accommodate Respondent's schedule. On that date, the Project Manager knocked on the door to the Subject Premises. Respondent opened the door, and discussed the proposed work with the Project Manager. Respondent did not permit any of Petitioner's agents access to the Subject Premises on said date.

Respondent acknowledged that he has intentionally refused to provide Petitioner with access to do the work, as a form of "protest" to the change in the heating system, which [*4]Respondent views as an impermissible decrease in services.

Petitioner established a prima facie case at trial that Respondent beached his lease by failing to provide access for the conversion of the heating system. Respondent asserted no affirmative defense to this claim and established no defense at trial.

Based on the foregoing, Petitioner is entitled to a final judgment of possession as against Respondent. Pursuant to RPAPL § 753(4), Respondent is entitled to a ten day stay on issuance of the warrant, during which time Respondent may cure said breach by providing Petitioner with access to do the necessary work.

In the event Respondent fails to cure by providing access on or before January 30, 2015, the warrant of eviction may issue and execute on service of Marshal's notice.

This constitutes the decision and order of this court.^[FN2]

Dated: January 14, 2015

Hon. Sabrina Kraus