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NY's Highest Court Grants License to Change NY's Licensing Law

By By Adam Leitman Bailey and John M. Desiderio

Since at least as early as 1849, in the case of Dolittle v. Eddy (7 Barb. 74 (Supreme Court, New York County, 1849)), New York law has defined a license as the “authority to enter on the lands of another, and do a particular act or series of acts, without possessing any interest in the land.” Unlike a tenant who obtains the exclusive right to use and occupy the premises pursuant to a lease in consideration of the payment of rent, a licensee obtains no interest in the land, but only a revocable privilege to use it temporarily for a specified fee.

Although the court in Dolittle recognized that “[i]t is sometimes difficult to distinguish between an easement, a license, and a lease,” the authors of this article, nine years ago, published a thorough review of the case law distinguishing leases from licenses, and we noted that New York courts had consistently held a license exists when: 1) the owner retains absolute control over the premises; 2) the owner supplies all of the essential services required for the licensee's permitted use of the premises; and 3) the owner may revoke the permitted use of the premises “at will.” (See Karp v. Federated Department Stores, Inc. d/b/a Macy's' 301 AD2d 574, 754 NYS2d 27 (2d Dept. 2003). Since then, due to the frustration and delays in evictions that commercial landlords have suffered for decades, practitioners have increasingly advised their clients to turn to licensing and self-help lease provisions to facilitate more swift and less costly eviction proceedings.

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