Knudsen v. Lax

17 Misc. 3d 350
CourtWatertown City Court
DecidedAugust 16, 2007
StatusPublished
Cited by3 cases

This text of 17 Misc. 3d 350 (Knudsen v. Lax) is published on Counsel Stack Legal Research, covering Watertown City Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Knudsen v. Lax, 17 Misc. 3d 350 (N.Y. Super. Ct. 2007).

Opinion

OPINION OF THE COURT

James C. Harberson, Jr., J.

The issue in this case is whether a tenant can terminate a lease to protect his family when a level three sex offender moves into the adjacent apartment.

Robert and Barbara Lax (landlords) had the tenants sign a six-page, 33-paragraph lease on August 1, 2006 for a one-year term. The terms of the lease, which the landlords obtained from an Internet site, were not negotiated by the parties before the landlords had the tenants sign it without any input or comment from the tenants.

The lease expressly provided a covenant of quiet enjoyment promising that the tenants “shall . . . peacefully and quietly . . . enjoy said premises for the term.” The lease also stated that in the event the tenants abandoned the premises before the term ended the landlord could “hold the tenant liable . . . for the rent that would have been payable . . . during the balance of the unexpired term.”

In January 2007, a level three sex offender moved in, with the tenants living next to the offender. On January 23, 2007 the tenants submitted a written request asking to be allowed to terminate the lease on January 31, 2007 because “it is our responsibility having three young girls that we feel are potentially endangered of any harm by said sex offender we feel it warrants a release to be granted.”

The tenants vacated the premises on January 31, 2007 without the landlords agreeing to terminate the lease on that date. When the tenants commenced this proceeding to recover the security deposit, the landlords counterclaimed for the balance of the rent due for the final six months of the contract which terminated on July 31, 2007.

It is quite clear that in New York it is the public policy of this state to protect potential victims of a sex offender from “the risk of a repeat offense by such sex offender and the threat posed to the public safety” (Correction Law § 168-Z [5]) by that sex offender in limiting where such offender may go or work [352]*352and requiring notification to the public via Internet postings and phone where this offender lives, as well as imposing an obligation to notify “vulnerable organizational entities” that deal with potential victims in general and children in particular (Correction Law § 168-Z [6]).

In New York as a matter of law a person who has been designated a sex offender under article 6-C of the Correction Law must appear before the court which is to “assess the risk of a repeat offense by such sex offender and the threat posed to the public safety” (Correction Law § 168-Z [5]). Once such an assessment is made the sex offender is required on a not less than annual basis to verify his or her address and to notify authorities otherwise whenever the address changes (Correction Law § 168-f). This information is made available along with other identifying information about the sex offender either by phone (Correction Law § 168-p) or by an Internet posting (Correction Law § 168-q) to the public.

Correction Law § 168-Z (6) (b) and (c) require

“law enforcement agencies [to] compile, maintain and update a listing of vulnerable organizational entities within its jurisdiction. Such listing shall be utilized for notification of such organizations in disseminating such information on level [two and three] sex offenders pursuant to th[ese] paragraph^]. Such listing shall include and not be limited to: superintendents of schools or chief school administrators, superintendents of parks, public and private libraries, public and private school bus transportation companies, day care centers, nursery schools, pre-schools, neighborhood watch groups, community centers, civic associations, nursing homes, victim’s advocacy groups and places of worship.”

Penal Law § 65.10 (4-a) makes it a mandatory condition for some sex offenders not to enter onto “school grounds” and Correction Law § 168-v prohibits a registered sex offender from “operating], be[ing] employed on or dispensing] goods for sale at retail on a motor vehicle engaged in retail sales of frozen desserts.” These specific prohibitions are in addition to those included as part of any terms and conditions of probation and/or parole release as well as those various local laws enacted by various municipalities in the state which prohibit a sex offender from venturing within a designated distance from areas where children might be found, i.e., playgrounds, pools, schools.

[353]*353The law, then, in addition to limiting where a sex offender can go, relies upon providing a warning system to alert members of the public about where these offenders are and where they live so steps can be taken to protect one’s self or family or others by being on guard against becoming a victim of a “repeat offense by such sex offender.”

What strikes the court is the emphasis in the notification requirements and the other laws on keeping a sex offender away from the vicinity of children. This reflects the universal concern of society and any parent of a child when a sex offender is found in the proximity of where that child is located.

A reasonable parent or caretaker of a child will either institute heightened vigilance and/or remove the child physically from the zone of danger around the sex offender to reduce the risk to the child of becoming a victim of the sex offender repeating a sexual offense against the child. It is clear that isolating a child from the sex offender puts enormous pressure on a parent to remove the child from the location where the sex offender is located as being the first line of defense to keep the child from becoming a victim of a sex attack.

In this case, where a level three sex offender took up residence in an apartment adjacent to where the tenants with three young daughters lived and there was no means to protect them from being victims of a potential repeat offense by this level three sex offender except to remove them from the threat by vacating the apartment and moving away, the court agrees that the tenants had valid grounds to request an early termination of the lease.

The court finds that the alternative choice to remain in the apartment until the end of the term six months later and exercise a constant vigilance to protect the children would place unreasonable pressure on the tenants and would completely destroy the peaceful and quiet enjoyment of the apartment expressly covenanted by the lease.

Decision

The lease adopted by the landlords provided that it shall “be governed, construed and interpreted by . . . the laws of New York.” A review of this agreement under New York law is helpful in deciding this case.

In Rowe v Great Atl. & Pac. Tea Co. (46 NY2d 62 [1978]), the Court in dealing with a dispute over a lease contract discussed how “society has chosen to intervene in various ways in the [354]*354dealings between private parties . . . best exemplified by statutes mandating the express or implicit inclusion of certain . . . provisions in various types of contracts,” such as are found in article 7 of the Real Property Law at sections 227, 234, 235-b, 235-c and 235-f {id. at 68).

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Cite This Page — Counsel Stack

Bluebook (online)
17 Misc. 3d 350, Counsel Stack Legal Research, https://law.counselstack.com/opinion/knudsen-v-lax-nywatertcityct-2007.