Volunteers of America-Greater NY, Inc. v Carr

[*1] Volunteers of America-Greater NY, Inc. v Carr 2015 NY Slip Op 51589(U) Decided on November 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 4, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ.
&em;

Volunteers of America-Greater New York, Inc., Petitioner-Landlord-Respondent,

against

Harold Carr, Respondent-Tenant-Appellant.

Landlord appeals from (1) so much of a final judgment of the Civil Court of the City of New York, Bronx County (Joel R. Kullas, J.), entered or about December 18, 2014, after a nonjury trial, which, in awarding possession to landlord in a holdover summary proceeding, conditionally stayed execution of the warrant of eviction through December 31, 2015, and (2) an order of the same court (Timmie Erin Elsner, J.), entered on or about April 22, 2015, after a hearing, which denied landlord's motion to vacate the conditional stay.

Per Curiam.

Final judgment (Joel R. Kullas, J.), entered or about December 18, 2014, modified to vacate so much thereof as afforded tenant a one-year stay of execution of the warrant of eviction; as modified, final judgment 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. Appeal from order (Timmie Erin Elsner, J.), entered on or about April 22, 2015, dismissed, without costs, as academic.

Landlord, a supportive housing facility for formerly homeless military veterans, commenced this proceeding upon allegations that tenant breached the lease and committed a nuisance. The trial evidence showed, and the court expressly found, that tenant "intentionally smashed a hole" in the wall between his unit and landlord's locked storage room; tenant utilized the hole to enter into the locked storage room, without permission, and remove "furniture and [confidential] client files" of other tenants stored therein; and tenant then made "potentially threatening comments" to landlord's employees as he was being arrested. The court found this conduct violated the lease provisions forbidding "criminal activity" at the premises, and damage to the "building, common areas or furnishings." Neither the court's factual findings nor the portion of the final judgment awarding landlord possession of the premises are now challenged on appeal by tenant.

The trial court erred, however, in staying execution of the warrant for a one-year probationary period. Tenant is not entitled to an opportunity to cure the demonstrated breaches of the lease, since his conduct was manifestly "objectionable" (see RPAPL 753[3], [4]; Gordon v 476 Broadway Realty Corp., 129 AD3d 547 [2015]), and substantially interfered with the [*2]comfort and safety of other residents receiving support services, as well as landlord's on-site support staff. Indeed, the trial court recognized the potential danger of tenant's continued occupancy by imposing a lengthy list of conditions that tenant must abide by during the probationary period, - i.e., tenant must "refrain from: damaging . . . the subject unit or building, common areas or furnishings or make or permit disturbing noises . . . [and] shall refrain from: activities or behaviors that would constitute a threat to the safety, security or well being of other tenants or which would interfere with the rights to a peaceable and tranquil environment [including] threats of violence." We note, also, that there is nothing in the record that would provide any assurance that tenant's objectionable conduct would not recur, and tenant's own testimony was expressly rejected as "incredible."

For parallel reasons, a postjudgment stay pursuant to CPLR 2201 - even assuming that such stay was applicable in a proceeding of this type - was unwarranted.

We have considered landlord's remaining contentions and find them to be without merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

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