Opinion
570466/03.
Decided October 7, 2004.
Tenant appeals 1) from an order of the Civil Court of the City of New York, Bronx County, entered June 4, 2002 (Howard Malatzky, J.) which, inter alia, denied her cross motion to vacate a stipulation of settlement; 2) from an order of the same court dated September 12, 2002 (Sheldon J. Halprin, J.) which, inter alia, denied tenant's motion for leave to conduct discovery; 3) from a final judgment of the same court entered May 13, 2003 after a hearing (Sheldon J. Halprin, J.) awarding possession to landlord; and 4) from an order of the same court dated June 17, 2003 (Sheldon J. Halprin, J.) which denied tenant's motion for a new hearing on the basis of newly discovered evidence.
Order dated June 4, 2002 (Howard Malatzky, J.) affirmed, with $10 costs.
Final judgment entered May 13, 2003 and order dated June 17, 2003 (Sheldon J. Halprin, J.) affirmed, with $25 costs.
Appeal from order dated September 12, 2002 (Sheldon J. Halprin, J.) dismissed, without costs, as abandoned.
PRESENT: HON. WILLIAM P. McCOOE, J.P., HON. WILLIAM J. DAVIS, HON. PHYLLIS GANGEL-JACOB, Justices.
Civil Court properly enforced the terms of the so-ordered settlement stipulations unambiguously requiring tenant to remedy the nuisance conditions alleged in the holdover petition. Tenant has not demonstrated legal cause to vacate the stipulations or that it would be inequitable to hold the parties to their bargain ( see Matter of Frutiger, 29 NY2d 143, 149-150). By virtue of the settlement, any alleged defects in the predicate notices were waived ( see 433 West Associates v. Murdock, 276 AD2d 360).
The court's fact-laden determination that tenant permitted noxious and intolerable odors to emanate from her cluttered and dirty rent stabilized apartment in violation of the stipulations is amply supported by the voluminous hearing evidence. The hearing court could fairly credit the testimony of a series of building residents and staff attesting to the unabated "vile" and "nauseating" odors emanating from tenant's apartment during the probationary period agreed to by the parties, and was warranted in drawing a negative inference from tenant's failure to testify at the hearing ( see Matter of Padilla v. Levy, 300 AD2d 62, 63, lv denied 100 NY2d 602). No legal basis was shown for a new hearing, since there was no newly discovered evidence which "would probably change the result previously reached" ( Olwine, Connelly, Chase, O'Donnell Weyher v. Valsan, Inc., 226 AD2d 102, 103).
Tenant, having failed to remedy the demonstrated nuisance conditions despite ample opportunity to do so during the course of the protracted proceedings below, was not entitled to a further stay of execution of the warrant of eviction so as to effectuate the cure so long resisted ( see Stratton v. Fener, 211 AD2d 559; see also Frank v. Park Summit Realty Corp., 175 AD2d 33, mod on other grounds 79 NY2d 789). The landlord's service of a pre-petition notice to cure for the alternative ground of violation of the lease does not require that tenant be afforded a post-trial opportunity to cure in these circumstances where "a nuisance is proven and the court has found that the tenant's pattern of behavior over a period of years continuing through the [compliance hearing] 'shows no sign of abating'" ( Carnegie Park Assocs. v. Graff, 2003 WL 21959986 [App Term, 1st Dept], citing Rockaway One Co. v. Califf, 194 Misc 2d 191).
This constitutes the decision and order of the court.