Chelsea 18 Partners, LP v Sheck Yee Mak

Chelsea 18 Partners, LP v Sheck Yee Mak 2015 NY Slip Op 01893 Decided on March 10, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 10, 2015
Friedman, J.P., Sweeny, Acosta, DeGrasse, Gische, JJ.
14457 110264/10

[*1] Chelsea 18 Partners, LP, Plaintiff-Appellant-Respondent,

v

Sheck Yee Mak, et al., Defendants-Respondents-Appellants, Michael Mak, et al., Defendants.

Adam Leitman Bailey, P.C., New York (Jeffrey R. Metz of counsel), for appellant-respondent.

Simpson Thacher & Bartlett LLP, New York (Jonathan S. Zelig of counsel), respondents-appellants.

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered February 27, 2014, which, insofar as appealed from, denied plaintiff's cross motion for summary judgment on its claims seeking eviction and for dismissal of defendants' counterclaims, and denied defendants Sheck Yee Mak and Choi Kuen Mak's motion for summary judgment dismissing the complaint as against them, unanimously modified, on the law, to the extent of dismissing defendants' harassment counterclaim, and otherwise affirmed, without costs.

With regard to plaintiff's claim that defendants repeatedly refused access to their apartment to remedy conditions that posed a threat to health and safety, Supreme Court stated and plaintiff concedes that the alleged nuisance has been abated. Therefore, ejectment is not a proper remedy here (see e.g. 12 Broadway Realty, LLC v Levites, 44 AD3d 372, 372 [1st Dept 2007] [despite tenant's refusal to allow access to premises to correct ongoing condition/s potentially hazardous to others, notice to cure provision deemed reasonable and sufficient remedy, under the circumstances]).

Defendants' first counterclaim for harassment does not lie (Edelstein v Farber, 27 AD3d 202 [1st Dept 2006]).

We note that defendant Michael Mak did not file a notice of appeal.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 10, 2015

CLERK