Prospect Owners Corp. v. Sandmeyer

In Prospect Owners Corp. v. Sandmeyer (62 AD3d 601 [1st Dept 2009] the Court addressed the issue of whether defendants/tenants' use of "the south roof" adjacent to the tenant's apparent rent stabilized unit subject to RSC 2520.6[r][3], was governed by the parties' lease or was subject to a license. The Court first stated that the south roof was not governed by the tenants' lease, which did not include the south roof in the demised premises. The Court next explained that the defendants' use was not exclusive to the plaintiff/landlord, who had access to the south roof to perform maintenance and repairs or to the ground floor restaurant whose machinery was stored on the south roof. The Court also rejected the tenants' attempt to introduce parol evidence of the course of conduct, including the tenants' use of the south roof to the exclusion of all other tenants, the landlord's failure to objection to tenants' use of the space, and its "alleged acknowledgment and implicit approval" of tenants' use to establish the parties' intent to include the south roof at the inception of the lease. The lease was silent to the tenants' right to use that space, and there was no ambiguity as to whether the south roof was included in the leased premises.