Rutherford Tenants Corp. v. Kaufman , 622 N.Y.S.2d 691 ( 1995 )

—Order and judgment (one paper), Supreme Court, New York County (Peter Tom, J.), entered on or about October 18, 1993, which, in an action by plaintiff cooperative apartment corporation against defendant tenant/shareholder, inter alia, granted plaintiffs cross motion for summary judgment to the extent of finding that defendant had breached the proprietary lease by having a deck built on the patio behind his apartment without first obtaining plaintiffs consent, enjoining defendant to remove such deck and restore the patio to its former condition, and directing a hearing on the amount of plaintiff’s damages and reasonable attorneys’ fees, unanimously affirmed, with costs.

Summary judgment was properly granted since the letter from defendant’s contractor to plaintiff requesting permission to perform alterations referred only to replacement of a door and construction of a fence and the drawings apparently attached to the letter did not serve to alert that decking was also to be constructed. In any event, the subsequent, and independent, alteration agreement issued by plaintiff did not incorporate any part of the contractor’s letter by reference or otherwise authorize construction of decking; nor did it refer to any oral discussions. Defendant having breached the lease, plaintiff, under the terms thereof, is entitled to recover reasonable attorneys’ fees. We have considered defendant’s remaining arguments and find them to be without merit. Concur—Murphy, P. J., Rosenberger, Nardelli and Williams, JJ.