Rochester Hous. Auth. v Ivey

[*1] Rochester Hous. Auth. v Ivey 2012 NY Slip Op 50594(U) Decided on March 27, 2012 City Court Of Rochester Campbell, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 27, 2012
City Court of Rochester

Rochester Housing Authority, Plaintiff,

against

Tony Ivey, Respondent.



LT-002794-12/RO



For the Plaintiff:

Ernest D. Santoro, Esq.

ERNEST D. SANTORO, ESQ., P.C.

290 Linden Oaks, 1st Floor

Rochester, New York 14625

For the Respondent

Pro se

Victoria B. Campbell, J.

A hearing was held on March 22, 2012 in Rochester City Court before the Hon. Vincent B. Campbell, Acting City Court Judge, to determine whether the petitioner-landlord, Rochester Housing Authority, should be granted a Warrant of Eviction to evict the respondent, Tony Ivey, as an objectionable tenant from his apartment (No.1205) at 625 University Avenue in the City of Rochester, New York. Both the petitioner, represented by Ernest Santoro, Esq., and the respondent, appearing Pro Se, presented witnesses and submitted evidence at the hearing in support of their respective positions.

The petitioner contends that the respondent's alleged objectionable and illegal conduct while a tenant at the apartment complex constitutes a violation of his lease agreement as well as the rules and regulations of the petitioner, RHA, entitling the petitioner to terminate the respondent's tenancy and seek his removal as a holdover tenant in this proceeding. The respondent counters that he is not an objectionable tenant.

Various witnesses testified to an incident that occurred on February 11, 2012, at the RHA [*2]University Avenue apartment complex. The main witness of the petitioner, George Wilson, testified to an alleged altercation between the respondent and himself. Mr. Wilson's account of the incident that the respondent was the aggressor in the alleged altercation between them was effectively controverted by the respondent's witness, Mrs. Johnson, an elderly 11 year resident of the complex whose apartment was directly across the hall from Mr. Wilson. Mrs. Johnson testified that the alleged altercation was not provoked by the respondent. The witness further testified that the respondent did not pound on her door, yell at her, grab or attack her and push her outside of her door, directly contradicting the testimony of Mr. Wilson, who claimed that he went to Mrs. Johnson's defense when the respondent was attacking her. Mrs. Johnson further testified that the respondent, who resided on the 12th floor of the complex, was a "nice man", "a giving person", "considerate of others", and helps other tenants in the building. Rochester Police Officer, Bernie Garcia, who was dispatched to the complex and subsequently arrested the respondent for the alleged altercation testified that he never had a problem with the respondent prior to this incident while on duty as a part-time security officer at the complex. The property manager testified that there were "issues" with the respondent and he had to be "talked to" on various occasions but she was not specific as to any such incident. She claimed that the respondent was overbearing with residents and staff and placed people in a "defense mode", but offered no specific testimony to support her claim. The incident involving a trespasser with a pit bull, in this court's opinion, did not amount to objectionable conduct by the respondent, who attempted to remove the trespasser from the apartment building.

According to case law and the RPAPL 711 (1), the landlord has the burden of proof to establish by competent evidence that the tenant is an objectionable tenant to the satisfaction of the court (Ellimen and Co Inc vs Karlsen 59 Misc 2d 243). The courts have generally held that the objectionable conduct must be a recurring event and not merely an isolated incident (Kaufman vs Hammer 49 Misc 2d 773) unless the court finds that a one time incident is of such a serious and egregious nature as to constitute objectionable conduct (i.e.: the tenant shot another person at the apartment complex) 160 W 118th St Corp vs Gray 7 Misc 3rd 1016 (A). The court finds, based on the testimony and evidence submitted in the present case, that no such special circumstances exist. The court finds that the petitioner did not meet its' burden of proof and accordingly is not entitled to the relief requested in its petition.

Petition is dismissed. This decision constitutes the order and judgment of the court.

DATED:Rochester, New York

March 27, 2012

HON. VINCENT B. CAMPBELL