Tenant Installed ‘Jungle' on Roof

Facts: Rent-controlled tenant lived in a penthouse apartment with a rooftop terrace. Her lease allowed her to use the roof for gardening, but limited this use to shrubbery, flower boxes, and pots supported by cinder blocks and terrace furniture. Also, tenant had to comply with local building code rules. Tenant went further, without landlord's permission, and maintained for years a ``jungle'' consisting of earth, trees over 10 feet tall, and planters weighing more than several thousand pounds each, as well as an aluminum shed. At some point, landlord's workers threw some plants and the shed off the roof. Tenant sued landlord for damages and got an injunction barring landlord's workers from interfering with her use of the rooftop terrace. The court also awarded tenant attorney's fees, and landlord appealed. Court: Landlord wins in part. Landlord didn't violate the clause in tenant's lease giving her a right to maintain a garden. The so-called garden exceeded the permissible bounds of the lease because it didn't comply with safety regulations. Tenant shouldn't have gotten attorney's fees on this issue. The trial court had also mistakenly ruled that landlord had breached tenant's right to quiet enjoyment, as tenant had neither an exclusive right to use the roof nor an ownership interest in the roof. Attorney's fees awarded to tenant on this issue were also revoked. But, tenant was entitled to attorney's fees for breach of the warranty of habitability and infliction of extreme emotional distress.

Murphy v. Vivian Realty Co.: NYLJ, p. 22, col. 2 (12/28/93) (App. Div. 1 Dept.; Wallach, JP, Kupferman, Ross, Kassal, Nardelli, JJ)