BLDG Mgt. Co. Inc. v Firstenberg

[*1] BLDG Mgt. Co. Inc. v Firstenberg 2015 NY Slip Op 51688(U) Decided on November 24, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 24, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ.
570676/15

BLDG Management Co. Inc., Petitioner-Landlord-Appellant,

against

Marc Firstenberg, Respondent-Tenant-Respondent, and "John Doe" and "Jane Doe," Respondents.

Landlord appeals from an order of the Civil Court of the City of New York, New York County (Sabrina B. Kraus, J.), entered June 29, 2015, after a hearing, which conditionally granted tenant's posteviction motion to be restored to possession in a holdover summary proceeding.

Per Curiam.

Order (Sabrina B. Kraus, J.), entered June 29, 2015, reversed, with $10 costs, and tenant's motion to be restored to possession denied.

Tenant was legally evicted after he defaulted under the terms of the parties' so-ordered stipulation settling the underlying nuisance holdover proceeding, and he has shown no proper basis to be restored to possession. The governing (March 18, 2015) stipulation clearly and unambiguously provided that the warrant of eviction would execute "[i]n the event [tenant] fails to cure the clutter condition [in his apartment] on or before [April 1, 2015]" (emphasis added). Contrary to Civil Court's strained interpretation of the stipulation, the term "clutter condition" not only referred to the "C" violation, but also to the "excessive clutter" in the apartment underlying such violation. Indeed, a fair and reasonable reading of the subject stipulation, as well as the parties' prior (October 17, 2014) stipulation incorporated therein, reveals that their aim was to cure the "Collyer" condition of the premises resulting from "excessive clutter" and to keep the apartment "free of debris and clutter."

In concluding that tenant breached the stipulation, we adopt Civil Court's own, May 19, 2015, finding that there was a "preponderance of credible evidence . . . including [tenant's] own testimony and recent photographs which establish that while the Class "C" violation no longer exists the subject premises is still not in a legally acceptable condition and remains cluttered and dirty"; and the June 29, 2015, finding that landlord "removed 375 cartons and 50 huge garbage bags" from the apartment after tenant was evicted. We also reject the mistaken conclusion that [*2]landlord's posteviction removal of the clutter established that "[t]he clutter condition has thus unequivocally been cured."

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: November 24, 2015