2170-2178 Broadway LLC v Ross

[*1] 2170-2178 Broadway LLC v Ross 2007 NY Slip Op 50254(U) [14 Misc 3d 137(A)] Decided on February 16, 2007 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 16, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKEON, P.J., McCOOE, SCHOENFELD, JJ
570153/06.

2170-2178 Broadway LLC, Petitioner-Landlord-Appellant,

against

Joann Ross, Respondent-Tenant-Respondent.

Landlord appeals from a final judgment of the Civil Court of the City of New York, New York County (Jerald R. Klein, J.), entered February 10, 2005, after a non-jury trial, in favor of tenant dismissing the petition in a holdover summary proceeding.

PER CURIAM

Final judgment (Jerald R. Klein, J.), reversed, with $30 costs, and final judgment of possession awarded to landlord on the holdover petition. Issuance of the warrant of eviction shall be stayed for 60 days after service of a copy of this order with notice of entry.

Our authority to review the record developed at a bench trial and render a judgment warranted by the facts is as broad as that of the trial court (see Nestor v Britt, 213 AD2d 255 [1995]). Exercising that authority here, and adopting the trial court's own fully supported finding that tenant "for a protracted period of time ... continue[d] to use a bucket to transport her urine and occasional garbage [from her room] to the community bathroom [90 feet] down the hall", we find that tenant has engaged in a recurring and continuing pattern of objectionable conduct constituting a nuisance (see Domen Holding Co. v Aranovich, 1 NY3d 217 [2003]). The evidence, including the credible and consistent testimony of a building employee and fellow tenant, established that tenant's course of conduct caused an offensive "body waste" odor to emanate from the bathroom into the common hallway. The willfulness of tenant's conduct was confirmed by her own correspondence to the landlord in April 1999, where she stated that "drag[ging] my bucket of slops all the way over ... to the nearest community bath" was intended to give transient tourist guests "quite an eye and earful" in an effort to obtain an "accessible [private] bathroom" from the landlord at or about the time of the building conversion from a single room occupancy building to a modern transient hotel. Tenant further admitted at trial that she used the bucket as leverage "to get the case back in court" following the May 2001 dismissal, without prejudice, of landlord's nearly identical 1999 nuisance holdover proceeding.

Finally, we note that tenant failed to comply with the clear terms of an October 1999 "so-ordered" stipulation of settlement, knowingly entered into by tenant upon advice of counsel in a prior nuisance holdover proceeding. That stipulation, which required tenant to discontinue "use [of the] bucket... to transport urine or feces to the [community] bathroom," was not limited to a probationary period and reflected the parties' understanding that if tenant failed to comply, landlord's efforts to evict tenant would continue. Landlord having established a [*2]documented case of nuisance at trial, it is entitled to the possessory judgment sought in the petition.

This constitutes the decision and order of the Court.
Decision Date: February 16, 2007