Opinion
No. L & T 78931/2014
03-04-2015
ROC CENTURY ASSOCIATES, LLC, Petitioner v. Chittampalli Seshacchar NARAYANAN, Srinivasaraghavan Vasumathi Narayanan a/k/a/ Rajam I. Srinivasan 510 W 110th Street, Apt. 11F New York, N.Y. 10025, Respondents “John Doe” and “Jane Doe”, Respondents–Undertenants.
Rappaport, Hertz, Cherson & Rosenthal, PC, Forest Hills, for Petitioner. Chittampalli Seshachar Narayanan, New York, pro se.
Rappaport, Hertz, Cherson & Rosenthal, PC, Forest Hills, for Petitioner.
Chittampalli Seshachar Narayanan, New York, pro se.
SABRINA B. KRAUS, J.
BACKGROUND
This summary holdover proceeding was commenced by ROC CENTURY ASSOCIATES, LLC (Petitioner) against CHITTAMPALLI SESHACCHAR NARAYANAN (Respondent) and SRINIVASARAGHAVAN VASUMATHI NARAYANAN seeking to recover possession of 510 W 110TH STREET, APT. 11F NEW YORK, N.Y. 10025 (Subject Premises) based on the allegation that Respondent, the rent stabilized tenant of record, has created a nuisance in the Subject Premises through clutter and use of a washing machine.
PROCEDURAL HISTORY
Petitioner issued a notice of termination dated July 30, 2014, terminating Respondent's tenancy effective August 25, 2014, based on nuisance. The Notice asserted that the Subject Premises is filled trash and large piles of newspapers and magazines that occupy most of the floor space and make it difficult to move about. The Notice further asserted that Respondent has a washing machine without Petitioner's consent and that on numerous occasions the washing machine overflowed and caused damage to other apartments.
Annexed to the Notice are various pictures of the inside of the Subject Premises in 2012 and 2013.
The petition is dated September 22, 2014, and the proceeding was initially returnable October 14, 2014. The file indicates that Respondent asserted res judicata and a general denial as an answer.
On February 24, 2015, the proceeding was assigned to Part R for trial. The trial commenced and concluded on that day, and the court reserved decision.
PRIOR RELATED PROCEEDING
There was a prior nonpayment proceeding between the same parties, under Index Number 64793/2013. The proceeding started in May 2013. Petitioner sought rent for January through March 2013 at a monthly rate of $709.81.
Respondent appeared pro se and filed an answer on May 10, 2013. The answer asserted breach of warranty of habitability and constructive eviction based on a mold condition in the bathroom.
On May 17, 2013, the parties entered into a stipulation providing for repair and access on May 22, 23, and 24, and the proceeding was adjourned to July 9, 2013.
A court ordered inspection took place on May 28, 2013. The inspection resulted in the issuance of three Class “B” violations for a defective wasteline in the bathroom sink, defective ceramic floors in the bathroom and for plastering and painting in the bathroom.
Respondent moved to amend his answer on July 23, 2013. The motion was granted pursuant to a stipulation which provided that the trial would address any claims based on breach of warranty of habitability and constructive eviction, additional counterclaims were severed.
On October 7, 2013, after trial, the court (Elsner, J) awarded Petitioner a final judgment in the amount of $5349.49.
On November 12, 2013, the court denied Petitioner's motion for attorneys' fees. The court (Elsner, J) held that neither side was the prevailing party, that Petitioner had received a judgment for one third less than originally sought, and that it was excessive for Petitioner to have incurred $21,950.50 in fees litigating a claim of $6,757.59 against a pro se tenant.
Petitioner appealed this decision. On June 4, 2014, the Appellate Term dismissed Petitioner's appeal, based on the fact that Petitioner had failed to include a transcript of the trial in the record on appeal.
FINDINGS OF FACT
Petitioner is the deed owner of the Subject Premises pursuant to a Condominium Unit Deed dated June 16, 1999 (Ex 1). Respondent is the tenant of record of the Subject Premises. Respondent succeeded to the tenancy of CV Narasimhachar. A prior lease for the Subject Premises signed by CV Narasimhachar, as tenant of record, was entered into evidence (Ex 2). However, it was acknowledged by Bonnie Jacobs (Jacobs), a property manager for the Subject Premises, that this was not the first and original lease for CV Narasimhachar as tenant of record.
Respondent executed a lease renewal dated February 2010, for a term running from June 1, 2010 through May 31, 2012, at a monthly rent of $661.83 (Ex 3A). Respondent executed two subsequent renewals: one dated February 29, 2012, for a term through May 31, 2014, at a monthly rent of $709.81; and the other dated February 28, 2014 for a two year period through May 31, 2016 at a monthly rent of $764.82 (Ex 3B & 3C).
Jacobs testified for Petitioner. Jacobs has been a property manager for the last three years. The Subject Premises is a condominium unit. Petitioner owns eleven such units in the Subject Building. Jacobs testified that in 2014 she had requested access to the Subject Premises by speaking with the Super, and that the Super reported he was unable to contact Respondent, however this contradicted the Super's testimony that Respondent was cooperative in providing access when needed and Jacobs never actually attempted to directly contact Respondent to obtain access.
Respondent has a washing machine in the Subject Premises. Initially, Respondent used the washing machine through the kitchen sink, but later Respondent used it through a connection to the bathtub.
Petitioner also offered into evidence a July 2009 (Ex 6) letter alleging that Respondent's washing machine had caused damage to other apartments and asking that Respondent “... take appropriate steps to prevent such incidents from occurring in the future ...” Two additional letters were sent in October 2012, alleging that the washing machine was being kept in violation of Respondent's lease (Exs 7 & 9).
The October 2012 letters also asserted that Respondent had to immediately remove his air conditioner from the living room window and have it professionally installed and that the Subject Premises was extremely cluttered, constituted a fire hazard, and a breeding ground for insect and rodent infestation.
Finally, a letter was sent to Respondent on February 1, 2013, seeking access to the Subject Premises to determine the cause of a leak (Ex 10).
The doorman has a key to the Subject Premises.
Jacobs did go into the Subject Premises in August 2013. Jacobs saw all parts of the Subject Premises except the bedroom on that date. Photographs of the conditions observed by Jacobs on said date were entered into evidence [Ex 4a-r]. The photographs depict a Colliers like condition in the Subject Premises. The photos show bags and boxes throughout the Subject Premises, pots and pans, dishes, everything was covered including a bed and the stove. There is almost no room to walk about in the Subject Premises.
Access in August 2013 was for Petitioner to make repairs to the bathroom in the Subject Premises. In May 2013, a “Class C” HPD violation was issued for 120 square feet of mold in the ceiling and bathroom of the Subject Premises (Ex B). Additionally, in August 2013, the sink was missing from the bathroom, the toilet was leaking and there were floor tiles that needed to be replaced.
Marc Gilbert (Gilbert) also testified for Petitioner. Gilbert has lived in the building and been the Super for 20 years. Gilbert believes that Respondent has lived in the Subject Premises for over 20 years. In July 2014, Gilbert was in the Subject Premises because of a leak that had occurred in apartment 10F. Gilbert had no first hand knowledge as to the cause of the leak and was unable to make any determination of the caused of the leak after inspecting the Subject Premises. Gilbert inspected the plumbing in the Subject Premises and saw no visible problems with the plumbing. The leak in apartment 10F came from the kitchen ceiling.
Gilbert testified that he observed some hoarding conditions on the date he was in the Subject Premises. Gilbert testified that it was difficult to move about because other then a narrow pathway the Subject Premises was filled with items. Gilbert testified that 80–90% of the floor was covered. Gilbert testified that he had to move things to walk through and be very careful not to trip on items as he walked.
Gilbert testified that 75–80% of the kitchen floor was covered with items and that the countertops and stove were also cluttered.
Gilbert testified that in 2009 there had been a problem with apartment 2F having suds backing up into the kitchen sink and Gilbert believes that was caused by Respondent's use of the washing machine, which at the time he used through the kitchen sink.
Gilbert testified that in May or June of 2013, there was a leak in the bathroom of the Subject Premises that was caused by a broken pipe in the floor. Gilbert initially tried to repair the leak himself, but it broke again and Gilbert called in professional plumbers to fix the problem. Gilbert testified that Respondent was cooperative in providing access for the repairs.
The court found Gilbert to be a very credible witness.
Respondent testified on his own behalf.
Respondent acknowledged that the Subject Premises was in a cluttered state and that the photographs in evidence accurately depicted the clutter as of the date of the trial. Respondent alleged that he stopped living in the Subject Premises from December 2012 through the spring of 2013, because of the mold, and that he lived with his wife in an apartment in the Bronx. Respondent testified that the Subject Premises was so cluttered because during this eight month period, he used it primarily for storage. Respondent testified that in the Summer of 2013 he moved back in, but since that date has been physically unable to remove the clutter from the Subject Premises, and that he requires help from his wife to do so.
Respondent testified that the stove is not connected to the gas line and that Con Ed turned off the gas in the Subject Premises over four years ago. There is no phone landline in the Subject Premises for at least the past decade and no cable. Respondent's wife used to live in the Subject Premises, but moved out in 2006 or 2007.
DISCUSSION
§ 2524.3(b) allows a landlord to bring an eviction proceeding when:
The tenant is committing or permitting a nuisance ... or is by maliciously, or by reason of gross negligence, substantially damaging the housing accommodation; or the tenant engages in a persistent and continuing course of conduct evidencing an unwarrantable, unreasonable or unlawful use of the property to the annoyance, inconvenience, discomfort or damage of others, the primary purpose of which is intended to harass the owner or other tenants or occupants of the same or adjacent building or structure by interfering substantially with their comfort or safety.
The court finds that Petitioner failed at trial to prove its allegations regarding the washing machine. While it is undisputed that Respondent has a washing machine in the Subject Premises and that he uses it, there was no evidence that the washing machine caused leaks into apartment 10F or any other apartment. The Super, Petitioner's only witness on this point acknowledged no first hand knowledge of the cause of the leak in 10F, and denied any leaks from 2009, testifying that in 2009 there was an issue with suds backing up in the sink of apartment 2F, which did not occur again after 2009.
Additionally, Petitioner failed to offer the original lease for the tenancy into evidence. While a September 2, 1980 lease was offered, Jacobs acknowledged that there were earlier leases in existence that pertain to the tenancy. Nor did Petitioner establish through any expert testimony that the washing machine otherwise violated the law, or that any violations were issued pertaining to the legality of the washing machine.
However, it is undisputed that Respondent maintained the Subject Premises in a deplorable condition. The condition depicted in the photographs does not appear sanitary or safe. While there was certainly hazardous mold condition in the Subject Premises, the court does not credit Respondent's testimony that this is sole or even primary reason for the Collyers condition. Moreover, Respondent acknowledged that the repairs were made in August 2013, but as of the date of the trial, the clutter has not been addressed. Nor did Respondent support his claim that he was physically unable to clean up the Collyers condition with any corroborative medical evidence or testimony.
However, Petitioner failed to prove most of the other allegations in the pleadings. Petitioner failed to establish by a preponderance of credible evidence any insect or rodent infestation as a result of the hoarding, or any offensive odors. No other residents or occupants testified that they were adversely impacted by the hoarding condition. The condition of the Subject Premises did not prevent Petitioner from effectuating necessary repairs. Petitioner was on notice of the condition for years and did nothing to pursue the claim prior to the commencement of this proceeding.
Finally, Respondent is a long term rent controlled tenant. Respondent seeks an opportunity to cure the clutter condition post trial.
Where the alleged nuisance is curable, the tenancy is long-standing and the tenant is elderly there is authority to support a post trial opportunity to cure [169 Realty LLC v. Wolcott 2003 N.Y. Slip Op 51371(U) ; Trump Village Section 3, Inc. v. Birnbaum 2002 N.Y. Slip Op 50646(U) ; Lincoln Ten. Assoc. v. Snow NYLJ, Nov. 28, 1983); 4G Realty LLC v. Vitulli 2 Misc.3d 29 ].
Under the particular facts of this case, the court finds a post trial opportunity to cure is appropriate.
Based on the foregoing, Petitioner is awarded a final judgment of possession as against both named respondents. The proceeding is dismissed as to the “Does” as no one else was established to be living in the Subject Premises. The issuance of the warrant is stayed for 15 days to afford Respondent an opportunity to cure by eliminating the clutter condition in the Subject Premises.
Petitioner shall be entitled to inspect all rooms inside the Subject Premises, including the bedroom, and both parties may take photographs at the inspection, which shall take place on March 23, 2015, at 10:00 am. The purpose of the inspection shall be to determine whether Respondent has cured the condition. In the event Respondent has failed to cure the condition, or fails to provide access for the scheduled inspection, Petitioner may move for issuance of the warrant.
This constitutes the decision and order of the Court.
Parties may pick up Trial Exhibits within thirty days of the date of this decision from the second floor record room, Window 9, located at 111 Centre Street. After thirty days, the exhibits may be shredded in accordance with administrative directives.
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