521 E. 72nd St. Realty Co., LLC. v Borovicka

[*1] 521 E. 72nd St. Realty Co., LLC. v Borovicka 2010 NY Slip Op 50244(U) [26 Misc 3d 139(A)] Decided on February 19, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, JJ
570788/09.

521 East 72nd St. Realty Company, LLC., Petitioner-Landlord-Appellant,

against

Grace Louise Borovicka, Respondent-Tenant, "John Doe" and "Jane Doe," Respondents-Undertenants-Respondents.

Petitioner-landlord appeals from that portion of a final judgment of the Civil Court of the City of New York, New York County (Sheldon J. Halprin, J.), entered on or about February 6, 2009, after a hearing, which, in awarding possession to petitioner in a holdover summary proceeding, stayed the execution of the warrant of eviction.

Per Curiam.

Final judgment (Sheldon J. Halprin, J.), entered on or about February 6, 2009, insofar as appealed from, modified, the stay of execution of the warrant of eviction vacated and, as modified, affirmed, without costs. Execution of the warrant shall be stayed for 30 days from the service of a copy of this order with notice of entry.

Petitioner-landlord commenced this nuisance holdover proceeding on the basis that offensive and noxious odors were emanating from the demised apartment premises. The proceeding was settled by a stipulation that provided for an 18-month probationary period. The stipulation was signed by (or on behalf of) respondent-tenant Borovika and her two adult children, the latter who resided with the tenant and consented to being named as respondents to the proceeding, as well as the attorneys for both petitioner and respondents.

The stipulation provided that respondents, among other things, would "prevent odors from emanating from the Premises," and would "not engage in any acts or conduct, or allow conditions to exist in the Premises which interfere with the comfort and/or safety of Petitioner ... and/or any tenant or occupant in the Building and/or the adjacent" building. The stipulation enabled landlord, upon an alleged breach of the stipulation, to move to restore the proceeding for an "immediate hearing for the sole purpose" of determining whether respondents did in fact breach the stipulation. If the court determined that respondents breached the stipulation, landlord was entitled to a possessory judgment and issuance of a warrant of eviction "forthwith."

Shortly after the parties entered into the stipulation, landlord asserted that respondents breached the stipulation and a hearing was held before Civil Court, which concluded that [*2]respondents breached the stipulation, but stayed execution of the warrant of eviction on condition that respondents did not default again during the probationary period, which the court sua sponte extended.

We agree with Civil Court's factual finding that the witnesses' testimony at the hearing "established overwhelmingly" that "severe" odors emanating from the apartment premises into a medical office adjacent to the apartment (which required the staff at the office to close an examination room) constituted a "serious and substantial" violation of the stipulation. Given this determination, and affording proper effect to the plain terms of the two-attorney, so-ordered stipulation, no basis existed for the court's staying of the execution of the warrant of eviction on condition that respondents refrain from any further default during the (court-extended) probationary period (see Hotel Cameron, Inc. v Purcell, 35 AD3d 153 [2006]; see also 565 Tenant's Corp. v Adams,54 AD3d 602 [2008]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: February 19, 2010