Robert PALMER, Plaintiff-Respondent, v. WSC RIVERSIDE DRIVE, LLC, et al., Defendants-Appellants.
-- April 28, 2009
Sperber Dennenberg & Kahan, P.C., New York (Steven B. Sperber of counsel), for appellants.Jack L. Lester, New York, for respondent.
Judgment, Supreme Court, New York County (Lottie E. Wilkins, J.), entered July 30, 2008, dismissing this action seeking declaratory and other relief after nonjury trial, unanimously modified, on the law, to declare plaintiff has no leasehold possessory rights to the roof area, and otherwise affirmed, with costs in favor of defendants.
The scope of our review of a nonjury trial is as broad as that of the trial judge (Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809  ), and permits us to substitute our own judgment where the evidence fails to support an important element of the trial court's findings (Jossel v. Filicori, 235 A.D.2d 205, 206, 652 N.Y.S.2d 12  ). The trial court limited its declaration to stating that plaintiff was entitled to possession of the entire apartment under the current lease, and found an ambiguity as to whether this included the adjacent outdoor area, thus sidestepping the issue of rights thereto. This was due to a dearth of evidence that defendant WSC, the shareholder in the cooperative and holder of the proprietary lease appurtenant to the apartment, had any rights to the roof area.
There was no ambiguity in the lease, which controls the parties' rights and obligations. The lease referred only to the “Apartment,” not the roof, except in a standard-form provision in the attached Rules prohibiting tenants from drying their clothes there (see Hazlett v. Rahbar, 27 A.D.3d 384, 812 N.Y.S.2d 61  ). Nothing in the admitted documents or the parties' conduct allows an interpretation permitting plaintiff to use the roof/terrace area (see 1050 Fifth Ave. v. May, 247 A.D.2d 243, 668 N.Y.S.2d 600 ; Jossel, 235 A.D.2d at 206, 652 N.Y.S.2d 12).
In an action for declaratory judgment, where a disposition on the merits is against granting certain relief, the court should make a declaration rather than simply dismissing that aspect of the complaint (Hirsch v. Lindor Realty Corp., 63 N.Y.2d 878, 483 N.Y.S.2d 196, 472 N.E.2d 1024 ; see also Real Bidder v. St.Luke's-Roosevelt Hosp. Ctr., 254 A.D.2d 123, 678 N.Y.S.2d 630  ). Accordingly, we declare that plaintiff has no possessory rights under the lease to the roof area.
We have considered the balance of plaintiff's argument and find it unavailing.