Riverbay Corp. v Hart

[*1] Riverbay Corp. v Hart 2019 NY Slip Op 51713(U) Decided on October 24, 2019 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 24, 2019
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Ling-Cohan, J.P., Gonzalez, J.
570301/19

Riverbay Corporation, Petitioner-Landlord-

against

Eugene Hart, Respondent-Tenant-Respondent.

Petitioner cooperative appeals, as limited by its briefs, from so much of a final judgment of the Civil Court of the City of New York, Bronx County (Kimon C. Thermos, J.), entered on or about August 13, 2018, after nonjury trial, which dismissed the petition in a holdover summary proceeding.

Per Curiam.

Final judgment (Kimon C. Thermos, J.), entered on or about August 13, 2018, affirmed, with $25 costs.

Giving due deference to the trial court's detailed findings of fact and credibility, we find no cause to disturb the court's ultimate determination that respondent did not breach a substantial obligation of the tenancy by violating House Rule 15, which proscribes "interfer[ing] with the rights, comforts, or convenience of the other members" (see generally Tsangarinos v Attaway, 43 Misc 3d 142[A], 2014 NY Slip Op 50848[U] [App Term, 1st Dept 2014]; CDC Dev. Co. III LLC v Rivera, 8 Misc 3d 132[A], 2005 NY Slip Op 51151[U] [App Term, 1st Dept 2005]). While the trial record shows that respondent displayed a firearm, the trial court expressly found that he did so only in an effort "to protect his own safety" against a non-resident assailant who "ruthlessly attacked him" minutes earlier in two separate incidents at the building premises and "used a weapon upon him to inflict serious bodily harm," requiring respondent, a senior citizen, to be hospitalized for three days. The trial court correctly concluded that respondents' actions in this isolated incident, though neither wise nor prudent, did not amount to a breach of a substantial obligation of the tenancy warranting eviction, especially given that they were not directed against another member or a member of a cooperator's family, and that respondent "is not a menace or continuing threat to anyone in the building" (compare 14 Morningside Ave. H.D.F.C. v Murray, 53 Misc 3d 149[A], 2016 NY Slip Op 51667[U] [App Term, 1st Dept 2016]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur
Decision Date: October 24, 2019