Plaintiff commenced this Small Claim on May 26, 2015 claiming $1,500.00 for alleged breach of lease. At the hearing held on November 19, 2015, Plaintiff appeared and testified, and Mark W. Haag and Joyce Edens testified on behalf of the Defendant. Plaintiff's Exhibit 1 through 8 were marked and received into evidence as were Defendant's Exhibits A through H. After evaluation of the evidence, the Court finds and concludes as follows.

On July 8, 2013, Plaintiff and Defendant entered into a lease agreement for an apartment, owned by Defendant, located at 206 North Quarry Street, Apartment No.3 for the period August 1, 2013 through July 29, 2014 (Defendant's Exhibit B). The monthly rent was $975.00, and discounted to $925.00 if paid by the 5th of the month. Ms. Beninati, a graduate student and professional chef, pre-paid security in the amount of $1,171.25 and August rent of $925.00 (check #153 and #154).

Before entering into the lease, the parties had very specific and detailed email communications regarding repairs to be completed before move in (Plaintiff's Exhibit 1). Ms. Beninati saw the apartment in June of 2013, and was concerned about a large hole in the livingroom ceiling the landlord used to repair the roof of the building. She testified that she thought the hole was the biggest issue, and that other repairs were elective, cosmetic issues. On June 11th, Joyce Edens, office manager at Defendant HAAG Properties, promised "the ceiling will definitely be repaired and the shower basin recaulked" (Plaintiff's Exhibit 1). On June 13th Ms. Edens emailed Ms. Beninati with an update on the repairs:

"I just spoke with Mark to confirm what we can do (maintenance wise) and what he will [*2]hope (intend) to do before August 1st .

Definitely Do

• Repair Ceiling in Living Room

• Re-Caulk Shower

• replace laminate facing on the courter top & caulk (if counter top is not replace with new one)

• Replace screen on back kitchen door

• Paint Kitchen Ceiling

Hope (intend) to Do

• Install overhead light in Living Room

• Replace counter tops in kitchen

• Paint walls in kitchen

• Paint cabinet unit in the area off the bathroom"

(Plaintiff's Exhibit 1)

Based on the promises to repair the ceiling and other listed areas, Ms. Beninati signed the lease on July 8th.

The Court has reviewed the lease, a 13 page single spaced document (Defendant's Exhibit B). The terms of the lease relevant to this dispute are set forth below:

8. RIGHT OF ENTRY FOR REPAIR OR SHOW. The Landlord or his agents may enter the demised premises at any time for the purpose ofinspection or repair of for showing the premises to prospective Tenants or purchasers as specified in Paragraph 19 on the reverse side of this lease.

15. NOTIFICATION CONCERNING DELETERIOUS CONDITIONSTenant agrees to notify Landlord or Landlord's designated representative immediately (initially by telephone, if possible, and, in any event, in writing directed to Landlord's place of business) upon discovery or creation of any deleterious condition or situation in or about the premises, fixtures, and appurtenances requiring repairs or that may be subsequently require repairs.

19. RIGHT OF ENTRY FOR REPAIR OR FOR SHOW. The Landlord or his agents shall be permitted to enter the demised premises at any time for the purpose of necessary inspection and repair and at reasonable hours for the purpose of showing the premises to any prospective Tenants or Purchasers.

21. FAILURE TO GIVE POSSESSION. If the Landlord cannot deliver the premises for occupancy on the date of the commencement of the term of this lease by reason of repairs, renovations or decorations to the demised premises or the building, or because of the holding over of any Tenant, or for any other reason, the Landlord shall not be subject to any liability for the failure to give such possession and this lease shall remain in full force and effect except, however, any paid rent shall be adjusted for the period of non-possession by reduction of the first installment of rent payable after possession is given.

24. NO REPRESENTATION BY LANDLORD. The Landlord has made no representations or promises in respect to the demised premises or the building in which they are located except as set forth in this lease. Landlord will not be bound by any representation, statement, agreements, or other obligation, whether oral or written, unless specifically set forth in this agreement. Tenant agrees to accept and rent the premises in "as is" condition.

[*3]ASSIGNMENT OR SUBLEASE AGREEMENT

Assignment is not permitted without the prior written consent of the landlord, which consent may be withheld for any reason or no reason in the discretion of the landlord. Landlord may grant consent subject to conditions, including, without limitation:

You must pay an administrative fee of one hundred fifty dollars 30 days prior to the start of the sublease term.

(Defendant's Exhibit B, emphasis added)

The start date of the lease was August 1, 2013. Ms. Beninati informed the landlord that she had dropped off some personal property on August 12th , but would not sleep in the apartment until Sunday, August 25th (Plaintiff's Exhibit 1, August 12, 2013 email). When Ms. Beninati took occupancy on August 25th, she emailed Ms. Edens, notifying her that the ceiling repair had not been fully completed, which Ms. Edens acknowledged. Ms. Edens informed Ms. Beninati that the apartment had been repainted, and new furnishings were provided. Ms. Edens testified that JD Ferro of Cortland had found the roof leak, and had dried out and repaired the area before Ms. Beninati moved in. One layer of sheet rock had been installed, but the final layer of sheet rock, to make it level with the rest of the ceiling, had not been installed by the time Plaintiff, Ms. Beninati, moved in. Mark Haag testified that the incompleteness of the ceiling was merely cosmetic, and that no asbestos or other hazard had been found by the roofers. The photographs submitted by Ms. Beninati depict an unfinished repair, including an overhead light which had not been completely installed. Ms. Beninati testified that the overhead light fixture was left hanging for three days, before it was then functional. According to Ms. Beninati's photographs, the final repair on the ceiling had not been made by September 13th.

Ms. Beninati phoned the Ithaca City Building Department, and Robert Ripa inspected the apartment. Mr. Ripa's inspection report is unremarkable, but he mentioned the incomplete ceiling repair:

"On 9-10-13 I inspected apt due to complaint from tenant. Ceiling needed repair because of a leak. There was sheet rock over hole but was not fire rated. On 10-21-13 at owner's request I preformed another inspection. Owner went over area with 5/8 type x sheet rock. Owner will finish ceiling during break."

(Plaintiff's Exhibit 5)

Ms. Beninati testified that she moved in with a friend on September 14th because Mr. Ripa's report indicated that the sheet rock over the hole was not fire rated. She did not consider the incomplete repair to be only cosmetic. Mr. Haag explained that there is no living space above the ceiling, only the roof, and that code does not require it to be fire rated, nor did Mr. Ripa require the tenant to vacate the apartment. There is no competent evidence that any portion of the apartment was dangerous or uninhabitable.

Parole evidence, that is evidence of oral agreements made prior to the execution of a lease, are inadmissable in cases where a written lease is entered into subsequently. Eisert v Adelson, 136 AD 741 (2nd Dept 1910). That 100 year old case is still considered the law on the issue of "agreements made by the parties either prior to or contemporaneously with the execution of a written lease" 1 NY Landlord & Tenant Incl. Summary Proc. §6:14 and §18:21 (4th Ed.). The rule does not apply in cases of fraud or mistake. Id. Further, there is ample legal authority to find that letter agreements preceding the signing of a lease can operate as conditions precedent that is, if the conditions in the letter agreement are not satisfied, the lease would not become effective until the condition occurs. Oppenheimer & Co. Inc., v Oppenheim, Appel, Dixon & [*4]Co., 86 NY2d 685 (1995). In the Oppenheimer case, the Court of appeals held:

"A condition precedent is "an act or event, other than a lapse of time, which, unless the condition is excused, must occur before a duty to perform a promise in the agreement arises" (Calamari and Perillo, Contracts §11-2 at 438 [3d ed.]; see, Restatement [Second] of Contracts §224; see also, Merritt Hill Vineyards v. Windy Hgts. Vineyard, 61 NY2d 106, 112-113, 472 N.Y.S. 2d 592, 460 N.E.2d 1077). Most conditions precedent describe acts or events which must occur before a party is obliged to perform a promise made pursuant to an existing contract, a situation to be distinguished conceptually from a condition precedent to the formation or existence of the contract itself (see, M.K. Metals v. Container Recovery Corp., 645 F.2D 583). In the latter situation, no contract arises "unless and until the condition occurs" (Calamari and Perillo, Contracts §11-5, at 440 [3d ed])."

It was very clear from the testimony that Ms. Beninatia would not have entered into the lease without the promise to perform the repairs by move in. The Court of Appeals has said that express conditions precedent "must be literally performed, where as constructive conditions [those implied by the Court],...are subject to the precept that substantial compliance is sufficient." Id., at 690.

The landlord had fully performed the shower and counter top repairs, and had repainted the apartment, but had not fully completed the ceiling repair. Although the Court finds the remainder of the ceiling repair to be cosmetic, only, the condition precedent to the signing of the lease was to completely repair the ceiling in the livingroom. Ms. Beninati performed her part of the bargain, that is, she prepaid security and August rent, trusting the repairs would be complete by her move in date, August 25th. The condition precedent was not "literally performed" according to the terms of the email agreement, despite the extra time given the landlord. Id., at 690.

Ms. Beninati notified the landlord she wished to assign the lease. On September 5th, Ms. Beninati summarized a phone conversation with Ms. Edens in a email:

"Enclosed you [will] find a check for payment of September's Rent.

Based on our telephone discussion today, when the new lease is signed, any remaining rent for unoccupied days during the month of September will be returned to me on a pro-rated basis.

This document serves as my request to be released from the lease signed on July 8, 2013.

Once a new tenant is acquired, I will vacate the unit, within a maximum time of 48 hours.

I anticipate the pro-rated share of September's Rent to be returned to me along with the key deposit and security deposit in full."

(Defendant's Exhibit E)

On September 12th, Ms. Edens notified Ms. Beninati via email that "this office has reassigned [the apartment] to a Cornell University PhD student" (Defendant's Exhibit G). Ms. Beninati responded that she planned to vacate the property immediately and demanded reimbursement for all of August and September rents ($925.00 ea.), and her full security and key deposit ($1,171.25) (Defendant's Exhibit G, September 12th email). Ms. Edens scheduled a walk through for Saturday, September 13th, and the new tenant was scheduled to move in on Sunday, September 15th. Ms. Edens informed Ms. Beninati that the landlord would be charging a $150.00 for the assignment under the terms of the lease.

The Court has reviewed the assignment and sublease portion of the lease. The landlord is [*5]advised to review Real Property Law §226-b which governs the tenant's right to sublease or assign. The statue forbids a landlord from unreasonably withholding consent to sublease or assign. That means there must be a credible reason to withhold consent, like financial disqualification. With respect to the $150.00 charge, the lease provides that the tenant pay an administrative fee of a $150.00 30 days prior to the start of "sublease term" (Defendant's Exhibit B). There is no provision for an assignment fee to be paid by the tenant, and the balance of the lease terms refer to subleases, only. While the landlord very reasonably allowed reassignment of the lease, which benefitted the tenant, the Court cannot enforce an administrative fee without express language in the lease agreement or an agreement between the parties. Ms. Beninati objected to assessment of the fee in a timely manner. Finally, the Court found that the landlord failed to fully satisfy the conditions precendent to the lease.

Although Defendant landlord cannot enforce the lease as a result of the failure of the condition precedent (i.e. total ceiling repair), the landlord is still entitled to "reasonable rent" for the time Plaintiff occupied the premises. See Oxford Towers Co., LLC v Wagner, 58 AD3d 422 (1st Dept., 2009). The landlord equitably prorated September rent, charging Ms. Beninati for only 14 days in September (Defendant's Exhibit C). The Court finds insufficient proof for the electrical charge deduction ($23.29), but will allow a pro-rata trash fee of $24.75 as per the lease. As for the return of August rent, the Court finds that the fair value of the apartment in August was $925.00 per month, and that the term of the lease began August 1st. Ms. Beninati stored her personal property in the apartment in early August, and occupied it when she returned to Ithaca later that month. The repairs which formed the condition precedent, were completed except for the ceiling, which was substantially completed by the time Ms. Beninati took occupancy. The Court finds no precedent for return of August rent, and as a matter of substantial justice, DENIES Ms. Beninati's claim for August rent.