CANAL RUBBER SUPPLY CO INC v. GREENE REALTY OWNER LLC (2025)

Order, Supreme Court, New York County (James E. d'Auguste, J.), entered July 26, 2024, which denied plaintiff's motion to amend the complaint to add claims for actual eviction based on defendant's denial of timely same-day street level access to the building elevator and related injunctive relief, unanimously reversed, on the law, without costs, and the motion granted.

The decision in the prior appeal affirmed the dismissal of plaintiff's second cause of action, which only sought an injunction directing defendant to provide it with a key to access the elevator (Canal Rubber Supply Co. Inc. v. 6 Greene Realty Owner, LLC, 202 A.D.3d 616, 617, 159 N.Y.S.3d 851 [1st Dept. 2022]).  This does not preclude plaintiff's proposed new causes of action, which seek distinct relief, namely reasonable same-day or delivery-contemporaneous elevator access.

“A lease need not refer to ‘appurtenances’ in order to pass them to the tenant” (Second on Second Café, Inc. v. Hing Sing Trading, Inc., 66 A.D.3d 255, 268, 884 N.Y.S.2d 353 [1st Dept. 2009]).  Rather, an appurtenance “includes everything which is necessary and essential to the beneficial use and enjoyment of the thing leased or granted” (Greenblatt v. Zimmerman, 132 App.Div. 283, 285, 117 N.Y.S. 18 [1st Dept. 1909] [internal quotation marks omitted]).  Here, plaintiff's principal asserted that, since plaintiff began leasing the premises, it has both enjoyed and required extensive access to the elevator for its business.  Notably, the principal asserted that the carriers with whom plaintiff does business give ranges of dates for their pick-ups and deliveries without providing exact delivery schedules.  This creates the possibility that plaintiff requires continued same-day, street-level elevator access as an appurtenance to its lease.  Thus, the two proposed additional causes of action are not palpably insufficient (see McGhee v. Odell, 96 A.D.3d 449, 450, 946 N.Y.S.2d 134 [1st Dept. 2012]).  We note that the defendant relied on documents outside the record of this appeal, which we did not consider.