Benjamin Scott Corp. v Lydia

[*1] Benjamin Scott Corp. v Lydia 2009 NY Slip Op 50597(U) [23 Misc 3d 128(A)] Decided on April 8, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 8, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
570519/07.

Benjamin Scott Corp., Petitioner-Landlord-Respondent,

against

Mark Lydia, Bridget Lydia, Kristine Lydia, Respondents-Tenants-Appellants.

Tenants appeal from 1) a final judgment of the Civil Court of the City of New York, New York County (Gerald Lebovits, J.), entered on or about March 1, 2007, after a nonjury trial, which awarded possession to landlord in a holdover summary proceeding, and 2) an order (same court and Judge), dated March 27, 2007, which denied tenants' motion to be restored to possession.

Per Curiam.

Final judgment (Gerald Lebovits, J.), entered on or about March 1, 2007, affirmed, with $25 costs. Order (Gerald Lebovits, J.), dated July 27, 2007, reversed, without costs, and matter remanded to Civil Court for further proceedings consistent with this decision.

The evidence, fairly interpreted, supports the trial court's finding that the rent controlled tenants breached a substantial obligation of their tenancy by "undertaking alterations without [landlord's] consent to the floors, closets, bathroom door, and kitchen cabinets." However, the record demonstrates that tenants substantially complied with the court's post-judgment cure order. It is undisputed that tenants, in accordance with the court's cure directive, timely restored the flooring, bathroom door, bedroom closet and the two kitchen cabinets above the sink to their original condition or the equivalent. To the extent that tenants may not have removed three newly added kitchen cabinets one of which was not so much as mentioned by landlord at trial any such violation was de minimis in the circumstances of this case (see Rumiche Corp. v Eisenreich, 40 NY2d 174 [1976]; Mengoni v Passy, 175 Misc 2d 498 [1997], affd 254 AD2d 203 [1998]).

Given the present uncertainty as to the circumstances of tenants' eviction and the current status of the apartment premises, the fashioning of an appropriate remedy, if any, must await a more developed record.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 08, 2009