HAZLETT v. RAHBAR

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Supreme Court, Appellate Division, First Department, New York.

Elizabeth HAZLETT, Plaintiff-Appellant, v. Massud RAHBAR, et al., Defendants-Respondents.

Decided: March 28, 2006

ANDRIAS, J.P., SULLIVAN, WILLIAMS, GONZALEZ, CATTERSON, JJ. Jacob J. Goodman, New York, for appellant. Rose & Rose, New York (Kenneth E. Rosen of counsel), for respondents.

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered October 13, 2005, which denied plaintiff's motion for a preliminary injunction, unanimously affirmed, without costs.

Even if plaintiff does have-as she alleges for the first time in her appellate brief-a wooden terrace overlooking the garden adjoining her ground-floor apartment, as opposed to simply access to the backyard garden, the court's denial of a preliminary injunction prohibiting defendant Massud Rahbar, the building owner, from creating a cellar door to the backyard would have been a provident exercise of discretion (see Wellbilt Equip. Corp. v. Red Eye Grill, 308 A.D.2d 411, 765 N.Y.S.2d 490 [2003];  Paine & Chriscott v. Blair House Assoc., 70 A.D.2d 571, 417 N.Y.S.2d 68 [1979] ).   There is nothing in the lease plaintiff produced that mentions any agreement involving use of the backyard, and the paragraph on which she relies, pertaining to terraces and balconies, is simply a provision in a standard form which discusses the rules and regulations for the use of such a structure if one exists (cf. Washburn v. 166 E. 96th St. Owners Corp., 166 A.D.2d 272, 564 N.Y.S.2d 115 [1990] ).   Nor has plaintiff demonstrated that exclusive use of the backyard/garden/terrace was a required service that must be maintained as part of her rent-stabilized tenancy (see Administrative Code of City of N.Y. § 26-517[a][6] ).