149th St., LLC v Rodriguez

[*1] 149th St., LLC v Rodriguez 2016 NY Slip Op 50146(U) Decided on February 5, 2016 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 5, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and ALIOTTA, JJ.
2014-2818 Q C

149th St., LLC, Appellant,

against

Limbania Rodriguez, Respondent, -and- CARMEN GASCA, STEPHANY GASCA, DESTINY GASCA, "JOHN DOE" and "JANE DOE", Undertenants.

Appeal from a final judgment of the Civil Court of the City of New York, Queens County (Louis J. Villella, J.), entered February 28, 2014. The final judgment, after a nonjury trial, dismissed the petition in a holdover summary proceeding.

ORDERED that the final judgment is affirmed, without costs.

In this holdover proceeding based on a claim that tenant violated her lease by harboring a dog without landlord's permission, tenant defends on the ground that the

dog had been openly and notoriously harbored for over three months before landlord commenced the proceeding. Following a nonjury trial, the Civil Court, expressly crediting the testimony of tenant's witnesses and discrediting that of landlord's witnesses, dismissed the petition.

In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824, 826 [2008]).

Where a landlord or the landlord's agent has knowledge of a tenant's harboring of a pet openly and notoriously in an apartment for a period of three months or more and fails to commence a summary proceeding to enforce a lease provision prohibiting such activity, the lease provision is waived (Administrative Code of City of NY § 27-2009.1 [b]). The knowledge of the landlord's agents, including building employees, will be imputed to the landlord where the employees are shown to be aware of the presence of a pet (see Seward Park Hous. Corp. v [*2]Cohen, 287 AD2d 157, 166-167 [2001]; Mamaroneck Gardens Realty v Nye, NYLJ, Feb. 7, 1992, at 26, col 1 [App Term, 2d Dept, 9th & 10th Jud Dists 1992]).

Upon a review of the record, we find that there is ample support for the Civil Court's determination that tenant established by a preponderance of the evidence that the dog was openly and notoriously harbored for a period well exceeding three months, which evidence included testimony showing that the dog was walked through the public hallway and outside the building twice daily, several visits by building employees to perform repairs in tenant's apartment, and conversations between tenant's family members and the building's superintendent regarding the dog.

We note that, contrary to tenant's contention, landlord's appeal was not untimely. Inasmuch as tenant failed to serve a copy of the final judgment with notice of its entry, landlord's time to take its appeal did not begin to run (see CPLR 5513 [a]).

Accordingly, the final judgment is affirmed.

Pesce, P.J., Weston and Aliotta, JJ., concur.

Decision Date: February 05, 2016