Barry Martin 4410 Corp. v Santiago

[*1] Barry Martin 4410 Corp. v Santiago 2009 NY Slip Op 51310(U) [24 Misc 3d 128(A)] Decided on June 29, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 29, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
570450/08.

Barry Martin 4410 Corp., Respondent-Landlord-Appellant,

against

Luis A. Santiago, Respondent-Tenant-Appellant.

Tenant appeals from a final judgment of the Civil Court of the City of New York, New York County (Peter M. Wendt, J.) entered July 12, 2007, after nonjury trial, which awarded possession to landlord in a summary holdover proceeding.

Per Curiam.

Final judgment (Peter M. Wendt, J.), entered July 12, 2007, affirmed, without costs.

In this holdover summary proceeding based upon tenant's violation of the "no-pet" clause in his stabilized lease agreement, we agree that tenant failed to establish that he harbored the dog "openly and notoriously" with landlord's knowledge for more than three months before the commencement of the proceeding (see Administrative Code of the City of NY § 27-2009.1[b]). Giving due deference to the trial court's credibility determinations (see Claridge Gardens, Inc. v Menotti, 160 AD2d 544 [1990]), and in view of the fact that tenant expressly withdrew his offer to produce documents allegedly supporting his position that he purchased the dog beyond the applicable three-month period, we find no basis to disturb the court's fact-based determination that landlord did not waive the applicable "no-pet" provision.

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