201 W. 54th St. Buyer LLC v Rodin

[*1] 201 W. 54th St. Buyer LLC v Rodin 2015 NY Slip Op 50863(U) Decided on June 4, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 4, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Hunter, Jr., J.P., Shulman, Ling-Cohan, JJ.
15-037/038

201 West 54th Street Buyer LLC, Petitioner-Landlord-Appellant, -

against

Walter Rodin, Respondent-Tenant-Respondent, - and - "John Doe" and/or "Jane Doe," Respondents-Undertenants.

Landlord appeals from that portion of a final judgment of the Civil Court of the City of New York, New York County (Sabrina B. Kraus, J.), entered on or about July 31, 2014, after a nonjury trial, which, in awarding possession to landlord in a holdover summary proceeding, afforded tenant a postjudgment opportunity to cure pursuant to RPAPL § 753(4).

Per Curiam.

Final judgment (Sabrina B. Kraus, J.), entered on or about July 31, 2014, affirmed, with $25 costs.

After trial, Civil Court determined that tenant breached the "no alterations" clause in the parties' lease agreement by making alterations to his bathroom, which included the removal of the sink, toilet, medicine cabinet and a wall. Tenant does not appeal from the final judgment entered on the holdover petition. The sole issue before us is whether the court properly afforded tenant an opportunity to cure the breach pursuant to RPAPL 753(4). Inasmuch as the holdover proceeding was premised, in part, upon tenant's breach of the lease and a 10-day notice to cure was served pursuant to Rent Stabilization Code [9 NYCRR] § 2524.3(a), tenant was properly afforded the remedy of a postjudgment cure upon the court's finding that the lease wasbreached (see Cutler v North Shore Towers Assocs., 125 AD2d 532, 533 [1986]; Offit, Fortgang & Komito v Moshlak, 5 Misc 3d 130[A], 2004 NY Slip Op 51308[U], [App Term, 1st Dept 2004]; cf. Cabrini Terrace Joint Venture v O'Brien, 23 Misc 3d 136[A], 2009 NY Slip Op 50827[U] [App Term, 1st Dept 2009], affd 71 AD3d 486 [2010], lv denied 15 NY3d 888 [2010]).

Contrary to landlord's claim, the evidence did not show that the alterations caused lasting or permanent injury to the premises and are not capable of any meaningful cure (cf. 259 W. 12th, [*2]LLC v Grossberg, 89 AD3d 585 [2011]). To the contrary, the record shows and the court expressly found that tenant's removal of the sink, medicine cabinet and toilet can be cured "by replacement of these items with the same or similar fixtures"; and the wall could be "legally replaced by a licensed professional within . . . ten days." In these circumstances, and in light of the principle that RPAPL § 753(4) must be "liberally construed to spread its beneficial effects as widely as possible" (Post v 120 E. End Ave. Corp., 62 NY2d 19, 24 [1984]), the court properly afforded tenant an opportunity to cure, so as to avoid a forfeiture of this long-term (28-year) rent stabilized tenancy.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: June 04, 2015