Can Relief Be Granted to the Landlord If Tenants Made Alterations In Leased Space Without His Permission ?
In Lexington & Fortieth Corp. v. Callaghan (281 NY 526 ), the tenants leased space for use as stores. the lease permitted alterations only with the consent of the landlord. (Supra, at 528.)
The trial court's findings, unchallenged on appeal, indicated that the tenants had altered the exterior of their space " 'without plaintiffs' knowledge, acquiescence, consent or permission, expressed or implied in any form whatever.' " (Supra, at 529, quoting trial court decision.)
The trial court found that the alterations cheapened the character and appearance of the hotel in which the leased premises were located. (Supra.)
The tenants were enjoined from making any further alterations, and the judgment as entered stated that the tenants were also " 'directed to forthwith remove the rear door and present front as reflected in Plaintiffs' Exhibits 8 and 9, and restore the said premises, both rear and front, to their conditions existing prior to the said alterations herein complained of, as reflected in Plaintiffs' Exhibit 3, and as indicated in Plaintiffs' Exhibit 7, prior to the time one of the rear windows was broken through, provided nevertheless that in lieu of such immediate removal and restoration, the said defendants, within ten days after service of a copy of this order and notice of entry, may post in escrow with the attorney for the plaintiffs a good and sufficient bond in the penalty of $ 2,500 conditioned upon restoration of the premises, at the expiration of its lease to their original state.' " (Supra, at 530, quoting trial court judgment.)
Plaintiffs appealed that aspect of the judgment which allowed for the posting of a bond, and argued that enforcement of the injunction should not be postponed until the end of the lease because such delay constitutes "denial of the only complete remedy which the plaintiffs could invoke for wrong done and the only complete protection from injury caused by continuance of the wrong." (Supra, at 531.)
The Court of Appeals held that the trial court had the discretion to fashion a remedy taking into account "conflicting considerations of benefit to the plaintiffs and harm to the defendants which would follow from the grant of the drastic remedy for which the plaintiffs ask, and all the facts and circumstances which help to show what is just and right between the parties.
The record and the findings disclose circumstances which justify the exercise of the court's discretion in granting the partial relief formulated in the judgment." (Supra, at 131.)