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Adam Leitman Bailey, P.C. Wins Vindicated Victory Against Long Term Nuisance Tenant After 5 Day Trial, Civil Court

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[*1] Cabrini Terrace Joint Venture v O’Brien 2008 NY Slip Op 50443(U) [18 Misc 3d 1145(A)] Decided on March 7, 2008 Civil Court Of The City Of New York, New York County Lebovits, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through April 8, 2008; it will not be published in the printed Official Reports.

Decided on March 7, 2008
Civil Court of the City of New York, New York County

Cabrini Terrace Joint Venture,


– against –

Charles O’Brien,



Adam Leitman Bailey, PC, New York City (Adam Leitman Bailey, Carolyn Rualo, and Dov Treiman of counsel), for petitioner.

Charles O’Brien, Esq., New York City, appearing pro se.

Gerald Lebovits, J.

Petitioner commenced this Collyer-type holdover proceeding against respondent Charles O’Brien, a rent-stabilized tenant who has resided in the subject cooperative building for 40 years, on two alternative grounds: breach of a substantial obligation of the lease and nuisance. Before it began this proceeding, petitioner gave respondent a 10-day notice to cure and a termination notice. Petitioner contends that respondent violated paragraphs 8 (B) and 12 of his lease, in violation of Rent Stabilization Code (RSC) [9 NYCRR] § 2524.3 (a). Petitioner further contends that respondent created a nuisance under RSC § 2524.3 (b) by maintaining in the subject premises unclean, unsanitary, and unhealthy conditions that have interfered with the health, safety, and welfare of other tenants in the building. Respondent argues that if conditions ever existed, he has cured them.

The court concludes, following a trial and the court’s inspection of the premises, that the conditions in respondent’s apartment were deplorable for many years and that although respondent has cleaned his apartment to some extent, the conditions remain a nuisance.

Findings of Fact

A trial, digitally recorded, was held on November 5, 16, 28, and 29 and December 5, 18, and 21, 2007. The parties stipulated to petitioner’s prima facie case. Six witnesses testified for petitioner: Gene Bernstein and Ruben Santiago, former superintendents of the premises; Drew Turner, the current superintendent of the premises; Edwin Rivera, an exterminator; Tess and Ronald Sholom, respondent’s neighbors and shareholders who reside in apartment 2G; and Jose [*2]Calderon, who performed work in respondent’s apartment. They all testified credibly. Three witnesses testified for respondent: Nicole Frank, a tenant in apartment 7E; Bridget Phelan, a tenant in apartment 2J; and Kim Dramer, a shareholder of the premises. Respondent’s witnesses visited his apartment only rarely and recently. To the extent that their testimony is relevant, they were inordinately biased against the cooperative board and management company. Their testimony is of limited value, although one of respondent’s witnesses, who visited his apartment at the end of November 2007, described it as “a mess” with “lots of stuff.” Respondent, an attorney, testified on his own behalf. The court credits his testimony as entirely honest, but the court disagrees with many of his perceptions and interpretations.

Witnesses described respondent’s apartment over the years as “pretty ugly,” a “shit hole,” “very dirty,” and the “worst apartment” in the building. One witness said that respondent’s apartment looked as if he were having large parties, but never cleaned up afterward. Another testified that after he visited respondent’s apartment, he felt “dirty and disgusted” and vomited.

The witnesses described the smell inside respondent’s apartment as “bad,” “foul,” “like garbage,” “mildewy,” “musty,” “noticeable,” “old,” and “unbearable.” On a scale of 1 to 10, 10 being the worst, one witness described the smell inside the apartment as a 10. Respondent’s neighbors left candles and incense outside their apartment because the smell emanating from respondent’s apartment extended to the elevator. One witness testified that he had to wear a face mask because the smell inside the apartment was “unhealthy.”

Witnesses testified about the vermin and arachnid infestation in respondent’s apartment. One witness testified that he extracted respondent’s guitar amplifier from the garbage and found some 200 cockroaches in it. Another described how he cleaned bugs he found behind respondent’s refrigerator. Witnesses observed spider webs throughout the apartment and roach droppings inside kitchen cabinets, on the stove, and on the kitchen counter top. They also observed mice droppings throughout the apartment. One of respondent’s neighbors observed two mice run inside respondent’s apartment.

Witnesses further testified about the debris throughout respondent’s apartment. They saw dirty dishes and pots all over the kitchen and food elements on the kitchen floor. Witnesses described that respondent’s dirty belongings were stacked one- to three-feet off the ground. The master bedroom was obstructed; one witness described how he was unable to get to the other side of the room. The master bed was covered with dirty clothes, bags, boxes, and suitcases. Dirty and exposed wires were strewn about the living room. Witnesses testified that the floor throughout the apartment was so dirty they could not see the carpet.

Respondent cleaned his apartment in April 2006. But witnesses testified that in September and October 2006 — after respondent cleaned his apartment — the apartment looked as it did before the clean-up. At trial, petitioner introduced photographs, taken on a cellular phone camera, of respondent’s apartment after the clean-up. Although respondent had cleaned his apartment, and it was much improved, the same conditions existed. [*3]

After the parties appeared in Resolution Part C on May 15, 2007, respondent agreed, pre-trial, to give petitioner access to the apartment to install sheetrock and to paint, fill holes, replace fixtures, and exterminate. He agreed to move belongings that would prevent workers from conducting their job and to keep his apartment in good condition.

Respondent admitted at trial that his apartment looked for many years exactly as petitioner’s witnesses described it at trial. He testified that he cleaned his apartment in April 2006 and cured all the conditions. He testified that a smell no longer exists in his apartment. He testified that he cooks spaghetti 26 days a month; thus, no smell, as described by petitioner’s witnesses, could emanate from his apartment. He said that he has never been roach-free; he testified that he has always seen one or two roaches in his apartment even in the best of times. He testified that the last time he had mice in his apartment was in early 2006. He further testified that although he had lots of papers inside his apartment, they were not visible to him. He said that he has always given petitioner access to exterminate and that he has never refused access to the petitioner to clean or repair the apartment. He said that if the court were to visit his apartment, the court would see that the apartment is clean, clutter-free, and vermin-free.

The court accepted respondent’s offer to conduct an inspection. After the testimonial part of the trial and after the parties submitted their post-trial briefs, the court requested that the parties appear on February 13, 2008, at 2:00 p.m. The court did not inform the parties in advance about its intent to inspect. That afternoon, during the inspection but before entering respondent’s apartment, the court noticed a disagreeable smell apparent in the hallway. The smell did not extend to the elevator. The smell next to the elevator came from a different apartment. Inside respondent’s apartment, the court observed no spiderwebs, roaches, mice, roach droppings, or mice droppings. The one- to three-feet collection of clutter was gone. But the court observed the following conditions: an old and musty smell inside the apartment; dirt, dust, and grime throughout the apartment; pieces of paper and filth covering the floor and carpet throughout the apartment; dirty and stained living room couch; dirty kitchen utensils, dishes, and appliances; an electrical outlet and wires in the middle of the living room with cords running in different directions; closets stuffed to capacity and in disarray; dirty belongings throughout the apartment; and dirty blankets stacked high on unclean and broken beds in both bedrooms. The filth in respondent’s apartment was everywhere and extreme.

The court firmly rejects respondent’s belief that he has cured the nuisance conditions. The apartment is unfit for human habitation and is a health-and-safety risk to other tenants.

Conclusions of Law

Although petitioner commenced this holdover proceeding on two alternative grounds — substantial violation of the lease and nuisance — the court may not give respondent any more time to cure the nuisance conditions in his apartment. Not including the time respondent had to [*4]clean his apartment before this proceeding began, he has had ample opportunity during the pendency of this proceeding to do so: from February 16, 2007, when the parties first appeared in court, until February 13, 2008, when the court inspected the apartment.

Courts often grant a post-trial cure in a holdover proceeding predicated on a breach of a substantial obligation of the lease. (See e.g. Fairmont Manor Co. v Michael, NYLJ, July 13, 1998, at 28, col 6 [App Term, 1st Dept, per curiam] [holding that because proceeding was based on breach of lease and because respondent was served with notice to cure, tenant must be afforded tenant post-judgment cure to remedy her screaming, cursing, and stomping]; Ritz v Bitner, NYLJ, Nov. 25, 1983, at 12, col 2 [App Term, 1st Dept, per curiam] [affording tenant cure period to remove dogs in apartment].)

Tensions exist in the jurisprudence over holdover proceedings predicated on nuisance. The appellate caselaw is seemingly contradictory on whether and when to allow a post-trial cure. Some nuisances, however, are curable, especially if the tenant is elderly and the tenancy is long-standing. When nuisances are curable, courts must grant time to cure. (See e.g. Lincoln Terrace Assocs v Snow, NYLJ, Nov. 28, 1983, at 5, col 3 [App Term, 1st Dept, per curiam] [finding cure warranted when offending party, respondent’s wife, relocated to another country]; 169 Realty, LLC v Wolcott, NYLJ, Apr. 22, 2002, at 29, col 3 [Hous Part, Civ Court, Kings County] [finding nuisance curable and appropriate because of respondent’s age of 73 and 43-year rent-controlled tenancy and because respondent “attempted to cure by clearing her apartment”], affd 2003 NY Slip Op 51371[U], *3, 2003 WL 22519432, at *1, 2003 NY Misc LEXIS 1360, at *2 [App Term, 2d Dept, 2d & 11 Jud Dists, Oct. 2, 2003, mem].)

But trial courts must decline to exercise their discretion to allow a tenant a post-trial cure period in long-term Collyer nuisance cases involving not mere clutter but also pervasive dirt and debris and in which the tenant has had opportunities to cure but has failed to do so. Thus, courts do not grant a cure when the tenant refuses to remedy the nuisance despite having several opportunities to cure. (See e.g. Stratton Co-op., Inc. v Fener, 211 AD2d 559, 559 [1st Dept 1995, mem] [affirming Appellate Term’s refusal to grant a further stay and noting that because “respondent [had] ample time to cure with the assistance of numerous community organizations, which cure was not effected due to respondent’s refusal of access to her apartment, a stay of the warrant of eviction was lifted”]; Gazivoda v Sherman, 2008 NY Slip Op 50312[U], *1, 2008 WL 480014 , at *1, 2008 NY Misc LEXIS 587, at *1 [App Term, 1st Dept, Feb. 22, 2008, per curiam] [“[T]enant’s excessive accumulation of papers, debris and refuse,’ . . . had taken over [*5]all livable space’ in the demised premises. Tenant, having failed to remedy the demonstrated nuisance conditions despite ample opportunity to do so during the protracted proceedings below, was not entitled to a further stay of execution of the warrant of eviction so as to effectuate the cure so long resisted.”]; Kast Realty, LLC v Houston, 2003 NY Slip Op 50892[U], at *3, 2003 WL 21175992, at *1, 2003 NY Misc LEXIS 574, at * 2 [App Term, 1st Dept, Apr. 23, 2003, per curiam], affg NYLJ, Nov. 13, 2002, at 19, col 1 [Hous Part, Civ Ct, Bronx County] [“[D]uring the pendency of this matter, Respondent was given at least three five week periods to correct the [Collyer] nuisance situation, which obviously was never accomplished”].)

A tenant who “shows no signs of abating” the nuisance is not entitled after a trial to cure. (Matter of Chi-Am Realty, LLC v Guddahl, 33 AD3d 911, 912 [2d Dept 2006, mem] [finding opportunity to cure inappropriate because tenants showed ” no sign of abating'” nuisance — water overflowing in apartment below], quoting Whitehall Realty Co. v Friedman, 5 Misc 3d 126[A], 2004 NY Slip Op 51184[U], *1, 2004 WL 2334331, at *1, 2004 NY Misc LEXIS 1728, at *2 [App Term, 1st Dept, Oct. 7, 2004, per curiam].)

In an ejectment nuisance action over a rent-stabilized tenancy in a condominium unit, the Appellate Division, First Department, reversed Supreme Court’s order allowing a post-trial cure because the defendant-tenant had many opportunities to cure, never completely abated the nuisance, and would likely never abate the nuisance. (See Zipper v Haroldon Condominium, 39 AD3d 325, 326 [1st Dept 2007, mem] [“Although the trial court simply directed [tenant] to cure the condition, it is significant that in previous litigation years earlier, the court had taken extraordinary measure in an effort to assist [tenant] in curing the same [Collyer] condition so as to avoid eviction. Evidently, the problem has not been solved, and cannot be solved with a directive such as the trial court included in its order.”], revg 2005 NY Slip Op 30160[U] [Sup Ct, NY County, Nov. 21, 2005], lv dismissed 9 NY3d 919 [2007].)

If, as here, a landlord commences a holdover proceeding on alternative grounds — breach of a substantial obligation of the lease or nuisance and serves the tenant with a notice to cure — courts, despite the cure notice, will not give the tenant a post-trial opportunity to cure if ” a nuisance is proven and the court has found that the tenant’s pattern of behavior over a period of years continuing through [the trial] . . . shows no signs of abating.'” (See e.g. Whitehall Realty, 5 Misc 3d 126[A], 2004 NY Slip Op 51184[U], *1, 2004 WL 2334331, at *1, 2004 NY Misc LEXIS 1728, at *2 [finding that nuisance conditions — debris, clutter, and noxious odors — continued for years up through compliance-of-stipulation hearing], quoting Carnegie Park Assocs. v Graff, 2003 NY Slip Op 51198[U], *3, 2003 WL 21959986, at *1, 2003 NY Misc LEXIS 1039, at *2-3 [App Term, 1st Dept, Aug. 8, 2003, per curiam] [“[T]enant’s pattern of behavior [banging on walls and pipes] over a period of years continuing through the trial shows no sign of abating'”]; see also Lexington Ave. Props. v Charrier, NYLJ, Jan. 29, 1986, at 11, col 4 [App Term, 1st Dept, per curiam] [holding cure unwarranted, whether proceeding is “couched in terms of nuisance or violation of a substantial obligation of the tenancy,” given respondent’s “pervasive, varied, and unrelentless course of threats, insults and disruptive behavior”].) [*6]

In another nuisance and breach-of-lease proceedings, the Appellate Term, Second Department, allowed the landlord to plead both causes of action in the alternative and explained that if the landlord proves a nuisance extending through the trial, “no further opportunities to cure [are] either required or warranted.” (Rockaway One Co. v Califf, 194 Misc 2d 191, 194 [App Term, 2d Dept, 2d & 11th Jud Dists, July 18, 2002, mem] [finding that tenant engaged in a ” pattern of continuity or recurrence of objectionable conduct’ . . . up through the time of trial”], quoting Frank v Park Summit Realty Corp., 175 AD2d 33, 35 [1st Dept, mem], mod 79 NY2d 789 [1991].)

Applying the above principles to the facts in this proceeding, the court may not grant respondent additional time to cure the nuisance. Despite the tensions in the jurisprudence, this case fits squarely under Appellate Division’s Zipper, the Appellate Term and Appellate Division’s Gazivoda, and Whitehall Realty, Carnegie Park, and Rockaway One from the Appellate Term. In these cases, the courts refused to grant a cure when, as here, a Collyer-type nuisance involving clutter and filth continues over an extensive period of time, when the tenant had many opportunities to abate the nuisance, and when the tenant failed to abate the nuisance. Although petitioner predicated this case on alternative grounds — breach of a substantial obligation of the lease and nuisance — petitioner proved at trial that respondent created a nuisance, a “pattern of continuity or recurrence of objectionable conduct,” continuing through trial. (Frank, 175 AD2d at 35.)

The nuisance in respondent’s apartment has been ongoing for years. This conduct occurred before petitioner commenced this proceeding. This same pattern of behavior continued through the course of the proceeding. Respondent agreed, on May 15, 2007, in a so-ordered stipulation, to keep his apartment in good condition. The photographs that petitioner introduced in evidence, taken after the clean-up, show that respondent’s apartment remained dirty, cluttered, filthy, grimy, and unkept.

The court inspected respondent’s apartment after the trial ended. In doing so, the court relied on the Appellate Term’s decision in Gazivoda v Sherman (6 Misc 3d 66, 67 [App Term, 1st Dept 2005, per curiam], mod on other grounds 29 AD3d 458, 459 [1st Dept 2006]), in which the court reversed the trial court’s final judgment of possession for the landlord because the record was unclear about the conditions in the apartment during the trial. The Appellate Term found that “[b]alancing the possible safety concerns posed by any continuing Collyer’-type condition in the premises against the tenant’s interest in preserving his rent controlled tenancy of more than 50 years’ duration, fairness dictates that there be a more probing inquiry into the present condition of tenant’s apartment before a final resolution of the matter is reached.” (Gazivoda, 6 Misc 3d at 67.) During the inspection, this court observed that respondent’s apartment is overcome with debris and dirty belongings. Given all the opportunities that respondent has had to cure these conditions, the apartment continues to be dirty, cluttered, filthy, grimy, and unkept. Although respondent says that he has cleaned his apartment, respondent has not done so with a degree of success. Respondent’s behavior shows no sign of abating. The nuisance continues despite respondent’s clean-up. The conditions continue to cause a nuisance to other tenants in the [*7]premises.

Because respondent has engaged in a pattern of objectionable conduct through the time of trial, no further opportunity to cure is unwarranted or required. The nuisance “has not been solved, and cannot be solved with a directive” from this court to cure. (See Zipper, 39 AD3d at 326.)

Respondent is an attorney who volunteers with the New York City Civil Court Housing Part Volunteer Lawyers Project. Respondent, a 40-year tenant, defended himself pro se in this proceeding in a professional and competent manner. The court is deeply sympathetic to his predicament. The harm to other tenants in the apartment building, however, outweighs the harm in respondent’s forfeiting his apartment. From respondent’s perspective, he has cured all the nuisance conditions. But the court disagrees with his perspective. The nuisance conditions have not been cured.

Final judgment for petitioner. Warrant to issue forthwith. Execution of the warrant of eviction is stayed through May 15, 2008, to give respondent time to move. This stay is conditioned upon respondent’s paying use and occupancy.

This opinion is the court’s decision and order.

Dated: March 7, 2008


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