Zarkor LLC v Edouard

[*1] Zarkor LLC v Edouard 2006 NY Slip Op 52264(U) [13 Misc 3d 141(A)] Decided on November 17, 2006 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 17, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2004-612 K C.

Zarkor LLC, Respondent,

against

Ernest Edouard, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Oymin Chin, J.), dated March 9, 2004. The order denied tenant's motion to vacate a default final judgment and warrant and to dismiss the petition in a holdover summary proceeding.

Order reversed without costs and tenant's motion to vacate the default final judgment and warrant and to dismiss the petition granted.

In this nuisance holdover proceeding based on an accumulation of debris in and around tenant's apartment, tenant's motion to vacate the default final judgment and warrant and to dismiss the petition should have been granted. Tenant established an excuse for the default by showing that he was ill on the day of trial and had come to court late. With respect to the merits, it is the view of this court that the notice of termination did not constitute a proper predicate for a nuisance holdover proceeding (Rent Stabilization Code [9 NYCRR] §2524.3 [b]) because it failed to set forth facts showing a "pattern of continuity or recurrence of objectionable conduct" (Frank v Park Summit Realty Corp., 175 AD2d 33, 35 [1991], mod on other grounds 79 NY2d 789 [1991]; see Domen Holding Co. v Aranovich, 1 NY3d 117, 124 [2003]; 169 Realty, LLC v Walcott, NYLJ, Apr. 22, 2002 [Civ Ct, Kings County]).

Pesce, P.J., Golia and Rios, JJ., concur. [*2]
Decision Date: November 17, 2006