Frall Realty Corp. v. Kulpa — 50 Misc. 2d 750

Majority

p. 750

Frall Realty Corp., Respondent-Appellant, v. Dorothy Kulpa, Appellant-Respondent.

Supreme Court, Appellate Term, First Department,

May 19, 1966.

Neivman, Aronson <& Neumann ■(Mannis Neumann of counsel), for appellanjt-respondent. Arthur Sherr and Henry Mark Holser for respondent-appellant.

The mere refusal to install a new lock, after a burglary, followed immediately by oral notification, by a tenant (defendant), that she intended to vacate her apartment at the end of the month, does not constitute a constructive eviction. The plaintiff landlord, therefore, is entitled to recover the rent due ($110.88) for October, 1963, as well as the rent for September, 1963, awarded to it by the lower court.

The trial court did not abuse its discretion in permitting plaintiff to amend its complaint to include a claim for an attorney’s fee based upon the provisions of the lease between the

p. 751

parties. The award of $200 for such fee is justified by the record.

The judgment should be modified by increasing the recovery thereof by the sum of $110.88 and, as modified, affirmed, with $25 costs to plaintiif-respondent-appellant.

Concur — Gold, J. P., Capozzoli and Hecht, JJ.

Judgment modified, etc.