Opinion
570444/15
06-30-2015
443 EAST 78 REALTY LLC, Petitioner–Landlord–Appellant, v. Reuben TUPAS, Respondent–Tenant–Respondent.
Rose & Rose, New York City (David P. Haberman of counsel), for appellant. MFY Legal Services, Inc., New York City (Jason Blumberg of counsel), for respondent.
Rose & Rose, New York City (David P. Haberman of counsel), for appellant.
MFY Legal Services, Inc., New York City (Jason Blumberg of counsel), for respondent.
PRESENT: LOWE, III, P.J., SHULMAN, HUNTER, JR., JJ.
Opinion
PER CURIAM. Final judgment (Timmie Erin Elsner, J.), entered on or about October 10, 2013, modified to vacate so much thereof as afforded tenant a postjudgment opportunity to cure; as modified, final judgment affirmed, without costs. Execution of the warrant of eviction shall be stayed for 60 days from service of a copy of this order, with notice of entry. Appeal from order (Jack Stoller, J.), dated March 31, 2014, dismissed, without costs, as academic.
After trial, Civil Court determined that an actionable nuisance was created by the dangerous accumulation of refuse and debris that was stacked “from the floor to ceiling” throughout tenant's apartment, including “where a gas stove is located,” and which “result[ed] in an external threat to the building's occupants.” Tenant does not appeal from the final judgment entered in favor of landlord on the holdover petition. The sole issue before us is whether the court properly stayed execution of the warrant so as to afford tenant an opportunity to cure.
The court's determination that the nuisance conditions were “curable” was based upon a finding that the foul odors emanating from the apartment, which were observed by witnesses in October 2012 and November 2012, had “abated as of June 2013.” Such a conclusion is both unsupportable and unreasonable. Indeed, the court itself found that as of June 2013, when the odor condition was found to have “abated,” the premises:
“were in an extremely cluttered condition. Although there was a path in the living room which had been cleared, personal property was piled high on either side. A mattress leaned against [tenant's] property and could be laid on the floor for sleeping purposes. Windows were partially obscured by boxes and other items. The kitchen was particularly cluttered. Items were strewn in front of the stove and refrigerator, and formed mounds to the level of the counter tops. There was little or no room to maneuver in this area.”
In view of these fully supported findings, the fact that the odor was not evident on a particular day in June is of little consequence, and can hardly be considered support for the conclusion that the ongoing nuisance condition is “curable.” The court's conclusion as to curability is further undermined by its own express finding that “this is the second proceeding of this type commenced against [tenant], and that he has been unable to sustain the premises in a habitable condition on a long term basis”. Given that the nuisance existed over a substantial period, had not abated even though tenant had been given ample opportunity to do so, and was likely to continue or recur, a posttrial opportunity to cure should not have been granted (see Cabrini Terrace Joint Venture v.
O'Brien, 71 A.D.3d 486, 896 N.Y.S.2d 339 [2010], lv. dismissed 15 N.Y.3d 888, 912 N.Y.S.2d 564, 938 N.E.2d 998 [2010] ; Matter of Chi–Am Realty, LLC v. Guddahl, 33 A.D.3d 911, 823 N.Y.S.2d 458 [2006] ).
Nor does the fact that the condition of the apartment was substantially improved in February 2014, some four months after the judgment was issued, warrant a contrary result. The evidence showed a pattern of objectionable conduct likely to recur (Domen Holding Co. v. Aranovich, 1 N.Y.3d 117, 124, 769 N.Y.S.2d 785, 802 N.E.2d 135 [2003] ), and there is nothing in the record to indicate that tenant will or can change the long-standing behavior that caused the condition. Landlord and other residents had already been forced to endure an intolerable and continuing nuisance for an extended period, a condition found to have caused a threat to the health and safety of others at the premises. Thus, execution of the warrant should not have been stayed (see Frank v. Park Summit Realty Corp., 175 A.D.2d 33, 573 N.Y.S.2d 655 [1991], mod. on other
grounds 79 N.Y.2d 789, 579 N.Y.S.2d 649, 587 N.E.2d 287 [1991] ; see also Stratton Coop. v. Fener, 211 A.D.2d 559, 621 N.Y.S.2d 77 [1995] ), “and this even if some of the nuisance conditions were remedied by tenant following the close of the evidence” (Alonzo v. Perichon, 11 Misc.3d 127[A], 2006 N.Y. Slip Op. 50215[U], 2006 WL 431720 [App.Term, 1st Dept.2006] ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.