A.B. Ilibassi Co. v B.Way Café & Sports Lounge, Inc.

[*1] A.B. Ilibassi Co. v B.Way Café & Sports Lounge, Inc. 2009 NY Slip Op 50135(U) [22 Misc 3d 131(A)] Decided on January 29, 2009 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through February 18, 2009; it will not be published in the printed Official Reports.

Decided on January 29, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
570351/08.

A.B. Ilibassi Co., Petitioner-Landlord-

against

B.Way Café & Sports Lounge, Inc., Respondent-Tenant-Appellant.

Tenant appeals from a final judgment of the Civil Court of the City of New York, New York County (Geoffrey D. Wright, J.), entered on or about April 21, 2008, after a nonjury trial, which awarded possession to landlord in a commercial holdover summary proceeding.

Per Curiam.

Final judgment (Geoffrey D. Wright, J.), entered on or about April 21, 2008, affirmed, with $25 costs.

There is ample record evidence to sustain the trial court's finding that tenant committed a nuisance in violation of the governing commercial lease agreement by permitting excessive noise including repeated instances of loud music and vibrations to emanate from its street level establishment through the early morning hours for several months, disturbing the quiet enjoyment of building residents. Several building residents testified at trial to the chronic and ongoing condition, which routinely interrupted their sleep. The court's findings, resting in large measure on considerations relating to the credibility of witnesses, are entitled to deference on appeal (see Thoreson v Penthouse Intl., 80 NY2d 490, 495 [1992]). We have considered and rejected tenant's remaining arguments.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: January 29, 2009