KNUDSEN v. LAX (2007)

The issue in this case is whether a tenant can terminate a lease when a Level 3 Sex Offender moves into the adjacent apartment to protect his family.

Robert and Barbara Lax (landlords) had the tenant sign a six-page, 33 paragraph lease on 8/1/06 for a one-year term.   The terms of the lease which the landlord obtained from an Internet site were not negotiated by the parties before he had the tenant sign it without any input or comment from the tenant.

The lease expressly provided a covenant of quiet enjoyment promising that the tenant “shall ․ peacefully and quietly ․ enjoy said premises for the term.”   The lease also stated that in the event the tenant abandoned the premises before the term ended the landlord could “hold the tenant liable ․ for the rent that would have been payable ․ during the balance of the unexpired term.”

In January 2007 a level 3 Sex Offender moved in with the tenants living next to the offender.   On January 23, 2007 the tenants submitted a written request asking to be allowed to terminate the lease on January 31, 2007 because “․ it is our responsibility having three young girls that we feel are potentially endangered of any harm by said sex offender we feel it warrants a release to be granted.”

The tenants vacated the premises on 1/31/07 without the landlord agreeing to terminate the lease on that date.   When the tenant commenced this proceeding to recover the security deposit, the landlord counterclaims for the balance of the rent due for the final six months of the contract which terminated on 7/31/07.

It is quite clear that in New York it is the public policy of this state to protect potential victims of a sex offender from “the risk of a repeated offense by such sex offender and the threat posed to public safety” by that sex offender in limiting where such offender may go or work and requiring notification to the public via Internet postings and phone where this offender lives as well as imposing an obligation to notify “vulnerable organizational entities” that deal with potential victims in general and children in particular.

In New York as a matter of law a person who has been designated a sexual offender under Article 6-C of the Correction Law must appear before the court which is to “assess the risk of a repeated offense by such sex offender and the threat posed to public safety” (Cor.L.168-L[5] ).   Once such an assessment is made the sexual offender is required on a not less than annual basis to verify his or her address and to notify authorities otherwise whenever the address changes (Cor.L.168-f).  This information is made available along with other identifying information about the sex offender either by phone (Cor.L.168-p) or by an Internet posting (Cor.L.168-q) to the public.

Correction Law Section 168-L 6(b) and (c) requires “․ law enforcement agencies shall compile, maintain and update a listing of vulnerable organizational entities within its jurisdiction.   Such listing shall be utilized for notification of such organizations in disseminating such information on level three sex offenders pursuant to this paragraph.   Such listing shall include and not be limited to:  superintendents of schools or chief school administrators, superintendents of parks, public and private libraries, public and private school bus transportation companies, day care centers, nursery schools, pre-schools, neighborhood watch groups, community centers, civic associations, nursing homes, victim's advocacy groups and places of worship.”

Penal Law Section 65.10(4-a) makes it a mandatory condition for some sex offenders not to enter onto “school grounds” and Correction Law Section 168-v prohibits a registered sex offender from “operating, being employed on or dispensing goods for sale at retail on a motor vehicle engaged in retail sales of frozen desserts ․”  These specific prohibitions are in addition to those included as part of any terms and conditions of probation and/or parole release as well as those various local laws which prohibit a sex offender from venturing within a designated distance from areas where children might be found, i.e., playgrounds, pools, schools, enacted by various municipalities in the state.

The law, then, in addition to limiting where a sex offender can go, relies upon providing a warning system to alert members of the public about where these offenders are and where they live so steps can be taken to protect one's self or family or others by being on guard against becoming a victim of a “repeated offense by such sex offender.”

What strikes the Court is the emphasis in the notification requirements and the other laws on keeping a sex offender away from the vicinity of children.   This reflects the universal concern of society and any parent of a child when a sex offender is found in the proximity of where that child is located.

A reasonable parent or caretaker of a child will either institute heightened vigilance and/or remove the child physically from the zone of danger around the sex offender to reduce the risk to the child of becoming a victim of the sex offender repeating a sexual offense against the child.   It is clear that isolating a child from the sex offender puts enormous pressure on a parent to remove the child from the location where the sex offender is located as being the first line of defense to keep the child from becoming a victim of a sex attack.

In this case the fact a Level 3 Sex Offender took up residence in an apartment adjacent to where the tenant with three young daughters lived and there was no means to protect them from being victims of a potential repeat offense by this Level 3 Sex Offender except to remove them from the threat by vacating the apartment and moving away, the Court agrees that the tenant had valid grounds to request an early termination of the lease.

The Court finds that the alternative choice to remain in the apartment until the end of the term six months later and exercising a constant vigilance to protect the children would place unreasonable pressure on the tenant and would completely destroy the peaceful and quiet enjoyment of the apartment expressly covenanted by the lease.

Decision

The lease adopted by the landlord provided that it shall “be governed, construed and interpreted by ․ the laws of New York.”   A review of this agreement under New York law is helpful in deciding this case.

In Rowe v. Great Atl. & Pc. Tea Co. (1978), 46 N.Y.2d 62, 412 N.Y.S.2d 827, 385 N.E.2d 566, the Court in dealing with a dispute over a lease contract discussed how “․ society has chosen to intervene in various ways in the dealings between private parties ․ best exemplified by statutes mandating the express or implicit inclusion of certain ․ provisions in various types of contracts ․” such as are founded at Article 7 of the Real Property Law at Sections 227, 234, 235-b, 235-c and 235-f (id. p. 68, 412 N.Y.S.2d 827, 385 N.E.2d 566).

The Court went on to say such interventions are “․ also illustrated by judicial decisions to the effect that there exists in every contract certain implied-by-law covenants, such as the promise to act in good faith ․,” and “[I]n a similar vein, the law has developed the concept of unconscionability so as to prevent unjust enforcement of onerous contractual terms which one party is able to impose [on] the other because of a significant disparity in bargaining power (e.g. Uniform Commercial Code, Section 2-302)' ” (id.).

In 511 W. 232nd Owners Corp. v. Jennifer Realty Co. (2002), 98 N.Y.2d 144, 746 N.Y.S.2d 131, 773 N.E.2d 496, the Court said that the “․ duties of good faith and fair dealing ․, encompass any promises which a reasonable person in the position of the promisee would be justified in understanding were included' [citing Rowe, supra, p. 69, 412 N.Y.S.2d 827, 385 N.E.2d 566]” (id. p. 153, 746 N.Y.S.2d 131, 773 N.E.2d 496).

Warranty of Habitability

 Real Property Law Section 235-b(1) states that “[I]n every written ․ lease ․ the landlord ․ shall be deemed to covenant and warrant that the ․ occupants shall not be subject to any conditions which would be dangerous ․ or detrimental to their life, health and safety.”

In Park W. Mgt. Corp. v. Mitchell (1979), 47 N.Y.2d 316, 418 N.Y.S.2d 310, 391 N.E.2d 1288, the Court stated that “[T]hreats to the health and safety of the tenant ․ determines the reach of the Warranty of Habitability” (id. p. 328, 418 N.Y.S.2d 310, 391 N.E.2d 1288).

In Raghu v. 24 Realty Co. (2004), 7 A.D.3d 455, 777 N.Y.S.2d 487, the Court said that “[I]t is well established that a landlord has a common law duty to take minimal precautions to protect tenants from foreseeable harm,' a duty which encompasses a third party's foreseeable criminal conduct” (id. p. 456, 777 N.Y.S.2d 487) see, Nallan v. Helmsley-Spear, Inc., 1980, 50 N.Y.2d 507, 429 N.Y.S.2d 606, 407 N.E.2d 451, James v. Jamie Towers Hous. Co. (2003), 99 N.Y.2d 639, 760 N.Y.S.2d 718, 790 N.E.2d 1147 and Jacqueline S. v. City of New York (1993), 81 N.Y.2d 288, 598 N.Y.S.2d 160, 614 N.E.2d 723.

The Court in Matter of Nostrand Gardens Co-Op v. Howard (1995), 221 A.D.2d 637, 634 N.Y.S.2d 505, found that a failure of a landlord “to take effective steps to abate” a problem (noise) caused by another tenant breached “the warranty of habitability by depriving the [tenant] of the quiet enjoyment of their apartment” (id. p. 638, 634 N.Y.S.2d 505).

In this case, assuming the natural and reasonable concerns expressed by the tenant for the welfare of his family due to having a Level 3 Sex Offender move in to the neighboring apartment was a “safety threat” that fell “within the reach of the warranty of habitability” (Park W., supra, p. 328, 418 N.Y.S.2d 310, 391 N.E.2d 1288), then the landlord's duty “which encompasses a third party's foreseeable criminal conduct” (Raghu, supra, p. 456, 777 N.Y.S.2d 487) would be to force the sex offender move elsewhere but only if he “․ could have taken [such a] step” (Cohen v. Werner (1975), 82 Misc.2d 295, 298, 368 N.Y.S.2d 1005).

However, Real Property Law Section 235-f prohibits a landlord from removing a Registered Sex Offender either as a guest or occupant of a tenant's leasehold as has occurred in this case based solely on that designation unless perhaps his right “to restrict occupancy in order to comply with federal, state or local laws, regulations, ordinances or codes” (R.P.L. 235-f[8] ) could be construed to apply if the leasehold was located within an area which excluded sex offenders.

The Court finds that Real Property Law Section 235-b does not impose a duty on a landlord to remove a Registered Sex Offender who has become a legal occupant of his rental property merely due to that designation.

Real Property Law Section 235-c(1):  Unconscionability.

 Real Property Law Section 235-c(1) states “[I]f the court as a matter of law finds a lease or any clause of the lease to have been unconscionable at the time it was made the Court may refuse to, or it may enforce the remainder of the lease without the unconscionable clause, or it may so limit the application of any unconscionable clause so as to avoid any unconscionable result.”

In Matter of the State of New York v. Avco Financial Service of New York (1980), 50 N.Y.2d 383, 429 N.Y.S.2d 181, 406 N.E.2d 1075, the Court related that “[A]s a general proposition, unconscionability, a flexible doctrine ․ requires some showing of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party' [citing Williams v. Walker-Thomas Furniture Co. (1965), 350 F.2d 445]” (id. p. 389, 429 N.Y.S.2d 181, 406 N.E.2d 1075).   In Williams the Court said “Ordinarily, one who signs an agreement without full knowledge of its terms might be held to assume the risk that he has entered a one-sided bargain.   But when a party of little bargaining power, and hence little real choice, signs a commercially unreasonable contract with little or no knowledge of its terms, it is hardly likely that his consent, or even an objective manifestation of his consent, was ever given to all of the terms.   In such a case the usual rule that the terms of the agreement are not to be questioned should be abandoned and the court should consider whether the terms of the contract are so unfair that enforcement should be withheld.” (id. pps. 449-450).

In the Matter of the Estate of Wilhelmina Friedman v. Egan (1978), 64 A.D.2d 70, 407 N.Y.S.2d 999, the Court stated that “[T]he concept of unconscionability must necessarily be applied in a flexible manner depending on the facts and circumstances of each case” (id. p. 85, 407 N.Y.S.2d 999). The Court went on to explain that “[S]ubstantive elements of unconscionability appear in the content of the contract per se;  procedural elements must be identified by report of evidence of the contract formation process” (id ).

In the Matter of the State of New York v. Bel Fior Hotel (1980), 74 A.D.2d 692, 425 N.Y.S.2d 659, the Court citing Friedman addressed a lease entered into by tenants “confronted with a lack of meaningful choice, resulting in inequality in bargaining power” and the fact “the terms of the damage deposit provision unreasonably [favored the landlord]” (id. p. 693, 425 N.Y.S.2d 659).   See, Avildsen v. Myroslawa Prystay (1991), 171 A.D.2d 13, 574 N.Y.S.2d 535.

In Jones v. Star Credit Corp. (1969), 59 Misc.2d 189, 298 N.Y.S.2d 264, the Court observed that “[T]he meaningfulness of choice essential to the making of a contract can be negated by a gross inequity of bargaining power (Williams v. Walker-Thomas Furniture Co. [1965], 350 F.2d 445)” (id. p. 192, 298 N.Y.S.2d 264).   In Carnival Cruise Lines v. Shute [1965], 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622, the Court said “[T]he common law ․ subjects terms in contracts of adhesion to scrutiny for reasonableness” (id. p. 600, 111 S.Ct. 1522) quoting the Williams decision.

In Seabrook v. Commuter Housing Co. (1972), 72 Misc.2d 6, 338 N.Y.S.2d 67, aff'd 363 N.Y.S.2d 566, 79 Misc.2d 168, the Court's discussion of leases, the relationship of landlords and tenants in entering into one and the doctrine of unconscionability in general defined at U.C.C. 2-302 as being applicable to lease contracts created a guide thereafter followed by many decisions which provided relief to tenants from unconscionable leases or terms therein.

The Seabrook Court stated that “․ lessees ․ are usually occasional customers, not acquainted with the carefully drafted legal terms set forth in ․ printed form leases ․ carefully draft[ed] in language designed solely for the landlord's protection;” and “[W]hen the landlord presents the lease to the lessee for acceptance ․ he is usually ․ cognizant of the fact that the other party has not read or bargained for many of the incidental terms of the contract [as] ․ terms of the printed contract are usually nonnegotiable” (id. p. 7, 338 N.Y.S.2d 67).

The Court goes on to conclude that a “․ lessee that has no choice but to sign an unconscionable lease agreement ․ must be protected against the bad bargain he enters into” because as “laissez faire ․ has no place in our enlightened society where the lessor and lessee do not deal on equal terms” (id. p. 8, 338 N.Y.S.2d 67) especially when rental housing being in short supply limits the ability of a tenant to seek better lease deals.

The Court after reviewing the terms of the lease said that “[I]n Williams v. Walker-Thomas Furniture Co., 350 F.2d 445 the Court found that unequal bargaining powers and the absence of a meaningful choice on the part of one of the parties, together with contract terms which unreasonably factor the other party, may spell out unconscionability” (id. p. 11, 338 N.Y.S.2d 67).

In Edgemont Associates v. Skolnick (1977), 90 Misc.2d 761, 396 N.Y.S.2d 130, the Court reviewed the recent enactment of Real Property Law Section 235-c noting that in “[T]he Governor's Message of Approval of this new section specifically engraphs the spirit of Section 2-302 of the Uniform Commercial Code, striking down unconscionable contracts, into landlord tenant relationships” which included a specific reference to Seabrook (id. p. 763, 396 N.Y.S.2d 130).

The Court finds that the lease contract of some 33 terms pre-printed and submitted to the tenant without discussion and with no opportunity given the tenant to participate in the wording of the contract terms was an adhesion contract.

 In an adhesion contract the terms of such are subject “to scrutiny for reasonableness” (Carnival Cruise Lines, supra, p. 600, 111 S.Ct. 1522) as to whether “there was an absence of meaningful choice on the part of [the tenant] together with contract terms which are unreasonably favorable to the [landlord]” (New York v. Avco, supra, p. 389, 429 N.Y.S.2d 181, 406 N.E.2d 1075).

In applying the “concept of unconscionability ․ in a flexible manner ․ [based] on the facts and circumstances of each case” (Matter of Friedman, supra, p. 85, 407 N.Y.S.2d 999) the Court finds both substantive and procedural elements of unconscionability are present in the formation and terms of this contract.   See, Nu Dimensions Salons v. Becerra (1973), 73 Misc.2d 140, 143, 340 N.Y.S.2d 268.

The Court finds that as the tenant had no input in making the terms of the pre-printed contract presented to him to sign by the landlord the tenant was “confronted with a lack of meaningful choice, resulting in inequality in bargaining power” (New York v. Bel Fior Hotel, supra, p. 693, 425 N.Y.S.2d 659) so the tenant's “․ meaningfulness of choice essential to the making of [the lease agreement was] negated by [this] ․ inequality of bargaining power” (Jones, supra, p. 192, 298 N.Y.S.2d 264).

 The Court also finds that “․ when a party of little bargaining power, and hence little real choice, signs ․ an unreasonable contract with little or no knowledge of its terms, it is hardly likely that his consent, or even an objective manifestation of his consent, was ever given to all of the terms ․ the Court should consider whether the terms ․ are so unfair that enforcement should be withheld” (Williams, supra, pps. 449-450).

The Court concludes that the “abandonment” clause in the contract which gives the landlord various options including continuing to charge the tenant the full rent due for the balance of the term if the tenant quits the leasehold before the end of the one-year term without regard to the reason the tenant abandons the promise even for good cause was “unconscionable” under Real Property Law Section 235-c(1) for that reason when it was made.

In this case when the tenant advised the landlord he had to quit the apartment due to the presence of a Level 3 Sex Offender moving into the adjacent apartment for the safety of his three young daughters and the landlord refused to terminate the lease for that reason and seeks under the “abandonment” clause all the rent due for the balance of the term, the Court finds this is an example of when to apply “the concept of unconscionability ․ to prevent the unjust enforcement of onerous contractual terms which one party is able to impose [on] the other because of a significant disparity in bargaining power ․” (Rowe, supra, p. 68, 412 N.Y.S.2d 827, 385 N.E.2d 566) under Real Property Law 235-c.

Good Faith and Fair Dealing

 In Market Street Associates Limited Partnership and William Orenstein v. Frey, 941 F.2d 588 (1991), Judge Posner in discussing contract law remedies observed “[T]he concept of the duty of good faith ․ is a stab at approximating the terms the parties would have negotiated had they foreseen the circumstances that have given rise to their dispute” (id. p. 595).

He goes on to say that contracts “․ set in motion a cooperative enterprise, which may to some extent place one party at the other's mercy” and “[T]he parties to a contract are embarked as a cooperative venture, and a minimum of cooperativeness in the event unforeseen problem arise at the performance stage is required even if not an explicit duty of the contract' [citation omitted]” (id ).

He points out “[T]he ․ doctrine of good faith is to forbid the kinds of opportunistic behavior that a mutually dependent cooperative relationship might enable in the absence of rule.   Good faith' is a compact reference to an implied undertaking not to take opportunistic advantage in a way that could not have been contemplated at the time of drafting, and which therefore was not resolved explicitly by the parties' [citation omitted]” (id ).

 Judge Posner explains that “[A]t the formation of the contract the parties are dealing with present realities;  performance still lies in the future.   As performance unfolds, circumstances change, often unforeseeably;  the explicit terms of the contract become progressively less to the governance of the parties' relationship;  and the role of implied conditions and with it the scope and bite of the good faith doctrine grows” (id. pps. 595-596).

In Dalton v. Educational Testing Service, (1995), 87 N.Y.2d 384, 639 N.Y.S.2d 977, 663 N.E.2d 289, The Court observed that:

“[I]mplicit in all contracts is a covenant of good faith and fair dealing in the course of contract performance (see, Van Valkenburgh, Nooger & Neville v. Hayden Publ. Co., 30 N.Y.2d 34, 45, 330 N.Y.S.2d 329, 281 N.E.2d 142, cert. denied 409 U.S. 875, 93 S.Ct. 125, 34 L.Ed.2d 128).

Encompassed within the implied obligation of each promisor to exercise good faith are any promises which a reasonable person in the position of the promisee would be justified in understanding were included”.  (Rowe v. Great Atl. & Pac. Tea Co., 46 N.Y.2d 62, 69, 412 N.Y.S.2d 827, 385 N.E.2d 566, quoting 5 Williston, Contracts § 1293, at 3682 [rev. ed. 1937] ).   This embraces a pledge that “neither party shall do anything which will have the effect of destroying or injuring the right of the party to receive the fruits of the contract” (Kirke La Shelle Co. v. Armstrong Co., 263 N.Y. 79, 87, 188 N.E. 163). (id. p. 389, 639 N.Y.S.2d 977, 663 N.E.2d 289).

The lease contract prepared by the landlord is a 33 paragraph “New York Lease Agreement” copied from an Internet site.   It was presented to the tenant to sign without any input from him as to its terms.

The express covenant of quiet enjoyment (paragraph 18) promises that the tenant “․ shall and may peacefully have, hold and enjoy said premises for the term ․” The agreement at paragraph 22 entitled “Abandonment” gives the landlord in the event the tenant quits the leasehold to, among other things, “hold the tenant liable for any difference between the rent that would have been payable under this Agreement during the balance of the term ․”

The tenant quit the premises in this case because when the Level 3 Sex Offender moved into the next apartment due to the consternation arising from the concern he had for his three small daughters he no longer felt he enjoyed the promise he “may peacefully ․ enjoy said premises for the [balance of] the terms” as stated in the lease.

It is clear that neither the landlord or the tenant at the time the lease was signed contemplated a Level 3 Sex Offender moving into part of the dwelling rented to another tenant so when this happened and the tenant brought his concerns to the landlord the Court finds this was a legitimate example of a case where the “implied-by-law covenant ․ to act in good faith” (Rowe, supra, p. 68, 412 N.Y.S.2d 827, 385 N.E.2d 566) would apply to the landlord.

When the parties entered into this lease agreement they were dealing with “present realities” (Market St. Assocs., supra, p. 595) at the time it was signed which did not include the presence of a Level 3 Sex Offender living in the next apartment so as the “circumstances” changed “unforeseeably” and the “explicit terms of the contract [became] progressively less apt to the governance of the parties' relationship ․ the role of implied condition and with it the scope and bite of the good faith doctrine grows” (id. p. 596).

In this case when the tenant told the landlord he had to quit the lease months before the term ended due to the circumstances Judge Posner's observation is apt:  “[T]he concept of the duty of good faith ․ is a stab at approximating the terms the parties would have negotiated had they foreseen the circumstances that have given rise to the dispute” (id. p. 595).

The Court finds in this case “a reasonable person in the position of the promisee [tenant] would be justified in understanding” (Rowe, supra, p. 69, 412 N.Y.S.2d 827, 385 N.E.2d 566) the landlord would allow him to terminate the lease in the event a Level 3 Sex Offender moved into the next door apartment because neither he or the landlord would have expected any objection to such an early termination in such an event when the landlord could not force the Level 3 Sex Offender to vacate the apartment for the safety of the tenant's family.

In this case when the landlord refused to allow the tenant to terminate the contract before the expiration date six months later and seeks under the “abandonment” clause an additional six months rent of $2700 under the circumstances after it was evident the tenant could no longer enjoy the quit enjoyment of living there shattered by the level 3 sex offender moving in next door which, the Court concludes he should have agreed to do so under the covenant of good faith implied in the lease agreement to deal with a situation at the time it was signed.

To quote Judge Posner in Market St. Assocs. Ltd. Partnership, as the “doctrine of good faith is to forbid ․ opportunistic behavior ․ in the absence of the rule ․ there is an implied undertaking not to take opportunistic advantage in a way that could not have been contemplated at the time of drafting, and which therefore was not resolved explicitly by the parties' [citation omitted]” (id. p. 595), the Court finds this is exactly what the landlord is doing by refusing to in good faith release the tenant from the obligation to pay the balance due on the lease agreement by agreeing to an earlier termination of the agreement under these unusual circumstances and thus take an “opportunistic advantage” of the tenant being forced out of the place due to the Level 3 Sex Offender moving in the next apartment.

The landlord also expressly warranted to the tenant peaceful and quiet enjoyment of the leasehold which he could no longer provide when a Level 3 Sex Offender moved into the adjoining apartment.   Since he could not remove this sex offender under Real Property Law 235-f so as to restore to the tenant quiet enjoyment of his leasehold, he should allow the tenant to vacate his apartment without further rent obligations so he could afford to move his family to safer surroundings.

The Court finds that this resolution approximates “the terms the parties would have negotiated had they foreseen the circumstances that have given rise to the dispute” (Mkt. St. Assocs. Ltd. Partnership, supra, p. 595), a “promise which a reasonable person in the position of the [tenant] would be justified in understanding [was] included” (Rowe, supra, p. 69, 412 N.Y.S.2d 827, 385 N.E.2d 566) that the tenant could terminate the lease and leave the apartment when he could no longer continue to live next to a Level 3 Sex Offender due to the risk to his children.   For the landlord to refuse to allow an early termination of this lease and insisted on full payment of the rent due until the end of the original term six months later would be a violation of the covenant of good faith and fair dealing implicit in all New York contracts based on the facts of this case.

Conclusion

The Court has ruled that under RPL 235-c(1) the “abandonment” clause of this lease was unconscionable at the time the agreement was signed refusing to enforce it based on the circumstances of this case;  and, as well, the landlord violated the covenant of good faith and fair dealing when he refused to cooperate when the unforeseen circumstance of a Level 3 Sex Offender moving into the adjacent apartment requiring the tenant to request an early termination of the agreement for that reason to protect his children.

In support of this conclusion by the Court it is noted that as observed in Rowe how the Legislature had passed statutes “marketing the express or implicit inclusions of certain ․ provisions in the [lease] contract” (id. p. 68, 412 N.Y.S.2d 827, 385 N.E.2d 566) the Legislature has again mandated the same relief allowed by this Court in a situation where a tenant is the victim of violence.

Real Property Law Section 227-c (C. 73, L.2007), effective August 3, 2007, allows a victim of abuse for whom an order of protection has been issued to terminate a residential lease without incurring any further liability for future rent further eroding the concept of “Caveat Lessee” (Hollywood Leasing Corp. v. Rosenblum (1979), 100 Misc.2d 120, 123, 418 N.Y.S.2d 887 and Frazier v. Priest (1988), 141 Misc.2d 775, 780, 534 N.Y.S.2d 846).

In his approval message, Governor Eliot Spitzer wrote:  “This bill authorizes a domestic violence victim who has an order of protection against a batterer to seek a further order, which would permit the victim to terminate a residential lease without penalty.   The sponsors of the bill note that many domestic violence victims would be safer if they could move to a location where their abuser cannot find them, but the victims lack the financial resources to move because they often have ongoing lease obligations.

Although allowing individuals to break their contractual obligations should occur only rarely, it is appropriate where, as here, it would substantially increase the safety of a vulnerable population.   Moreover, this bill contains significant protections to ensure that leases are terminated only when absolutely necessary” (approval memorandum No. 4 Chapter 73 filed with Assembly Bill No. 3386).

Real Property Law Section 227-c states that one of the criteria for allowing relief where “․ there ․ exists a substantial risk of physical or emotional harm to such person or such person's child ․ if the parties remain in the premises and that relocation will substantially reduce such risk” (RPL 227-c[2] [b][i] ).   This legislation should be expanded to allow similar rights to a tenant endangered when a Registered Sex Offender moves into the same building to allow a tenant to relocate to avoid similar risks.  “[T]he day of caveat emptor, caveat lessee and ․ Simon Legrees are over as a matter of law for the tenants of this State” (Frazier, supra, p. 780, 534 N.Y.S.2d 846).

In light of the fact there are currently 280 Registered Sex Offenders living in Jefferson County of which 147 live in the City of Watertown and 3 in Antwerp this case dealing with a developing issue that has not only local but statewide implications.   This is caused by the relentless drive to identify Registered Sex Offenders and circumscribe their movements in an effort to keep them away from vulnerable members of society due to their pre-determined risk to re-offend and the rights of parties in a lease contract when a Registered Sex Offender becomes a resident of the same building.

This decision will allow a tenant the right to terminate a lease in such case in order to allow the tenant to move to a safe location without liability for future rent.   This conclusion is based on the fact that if State law prohibits a Registered Sex Offender from selling ice cream to children from a truck, then a tenant should have a right to remove his children from a living unit when a sex offender resides next door in order to also keep a sex offender away from his children.

The plaintiff is awarded $150 as a partial refund of the $450 security deposit after allowing defendant $300 credit for the balance due on the January 2007 rent together with costs of $15.   The defendant's counterclaim for $2,700 in rent due under the lease agreement for the period from February 2007 until July 2007 is denied.   This shall serve as the judgment and order of the Court.

JAMES C. HARBERSON, J.