811 Assoc. LLC v Toribio

[*1] 811 Assoc. LLC v Toribio 2015 NY Slip Op 50950(U) Decided on June 25, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 25, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Hunter, Jr., JJ.
570190/15

811 Associates LLC, Petitioner-Landlord-Appellant,

against

Belkis Toribio, Respondent-Tenant-Respondent.

Landlord appeals from (1) an order of the Civil Court of the City of New York, New York County (Brenda S. Spears, J.), dated January 15, 2014, which granted tenant's motion to be restored to possession in a nonpayment summary proceeding, and (2) an order (same court and Judge), dated January 7, 2015, which denied landlord's motion to renew and reargue the aforesaid order.

Per Curiam.

Orders (Brenda S. Spears, J.), dated January 15, 2014, and January 7, 2015, insofar as appealable, affirmed, with one bill of $10 costs.

Civil Court providently exercised its discretion and for good cause vacated the warrant of eviction so as to restore the long-term stabilized tenant to possession upon her payment of all outstanding arrears, eviction costs, and attorney's fees (see 102-116 Eighth Ave. Assoc., L.P. v Oyola, 299 AD2d 296 [2002]; Parkchester Apts. Co. v Scott, 271 AD2d 273 [2000]; see also Harvey 1390 LLC v Bodenheim, 96 AD3d 664 [2012]). Landlord's claim, raised for the first time at the untranscribed oral argument of the motion, that tenant cannot be restored to possession because the apartment has been rendered uninhabitable by improvement work, is not preserved for our review (see Hopper v Lockey, 241 AD2d 892 [1997]).

Landlord's renewal motion was properly denied, since it failed to offer a satisfactory explanation for failing to timely raise the issue of the purported uninhabitability of the apartment in its papers submitted in opposition to the original motion (see Hernandez v St. Stephen of Hungary School, 72 AD3d 595 [2010]). In any event, even if the proffered evidence were considered, it fails to show that the premises were rendered uninhabitable (see New York City Hous. Auth. v Porter, 40 Misc 3d 41 [2012]) during the brief period between January 3 and January 7, 2014, when no stay was in effect. Indeed, the conclusory affidavit of landlord's agent fails to specify what demolition or renovation work was performed during this period and the photographs submitted are inconclusive.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: June 25, 2015