Nunz Equities E., LLC v Mangan

[*1] Nunz Equities E., LLC v Mangan 2009 NY Slip Op 51810(U) [24 Misc 3d 144(A)] Decided on August 20, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 20, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
570529/08.

Nunz Equities East, LLC, Petitioner-Landlord-Appellant,

against

Linda Mangan, Respondent-Tenant-Respondent, -and- "John Doe" and "Jane Doe," Respondents-Occupants.

Landlord appeals from a final judgment of the Civil Court of the City of New York, New York County (David B. Cohen, J.), entered on or about July 27, 2007, after a nonjury trial, which dismissed the petition in a holdover summary proceeding.

Per Curiam.

Final judgment (David B. Cohen, J.), dated July 27, 2007, affirmed, with $25 costs.

We agree that the holdover petition must be dismissed, since tenant was effectively denied a full 10-day period to cure the alleged illegal alterations which formed the basis for the termination of the 30-year rent stabilized tenancy (see Rent Stabilization Code [9 NYCRR] § 2524.3[a]). The record established that three days after service upon tenant of the notice to cure, landlord served tenant with a temporary restraining order (TRO) issued by Supreme Court enjoining tenant, inter alia, from "performing ... any alterations" in the premises. As the trial court put it, "a reasonable layperson confronted with [the] TRO [c]ould read it to mean that all work in the apartment must cease."

Were we to reach the merits, we would find that the evidence, fairly considered, supports the trial court's determination that tenant's replacement of decades-old appliances and cabinets — originally purchased and installed by tenant herself with the permission of the prior landlord— did not constitute a substantial lease violation (see Ram I LLC v Stuart, 248 AD2d 255 [1998]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
Decision Date: August 20, 2009