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Tuesday, March 13, 2018

129 Avenue D LLC, the petitioner in this proceeding ("Petitioner"), commenced this holdover proceeding against Dash S.O. Hoving, the respondent in this proceeding ("Respondent") seeking possession of 748 9th Street a/k/a 129 Avenue D, Apt. B3, New York, New York ("the subject premises") on the ground of nuisance  The Court held a hearing on a motion in this matter.

Petitioner commenced this proceeding with a service of a predicate notice dated March 31, 2014.  The petition was first noticed to be heard on May 28, 2014.  The parties resolved the matter with a stipulation dated October 8, 2014, according to which Respondent agreed to refrain from engaging in certain conduct.  Alleging a breach, Petitioner moved for a judgement against Respondent by a motion noticed to be heard on July 10, 2015.  A hearing on Petitioner's motion commenced, and the parties again settled the matter by stipulation dated November 23, 2016 ("the Stipulation").   Accordingly to the Stipulation, Respondent consented to a final judgment of possession with a forthwith issuance of a warrant of eviction although the execution of the warrant was stayed through August 31, 2018 for Respondent to refrain from a variety of proscribed acts and, if Respondent did so, the warrant would not execute.  If Petitioner alleged that Respondent breached any provision of the Stipulation, (1. The word "any" is in bold typeface and underlined.) petitioner was permitted to restore the matter for an immediate hearing, the sole issue of which would be whether Respondent violated the Stipulation and, if the Court found upon such a hearing that Respondent breached the Stipulation, the warrant may execute forthwith with no opportunity to cure.  The Stipulation stated that time was of the essence.

The Stipulation required Respondent to either remove a washing machine from the subject premises or have the washing machine installed in compliance with all applicable statutes, rules, and regulations by a licensed plumber within sixty days of the Stipulation and provide proof of the plumber's credentials within two weeks of an installation.

The Stipulation required respondent to provide Petitioner access to the subject premises at 7 p.m. on December 15, 2016 for extermination.

The stipulation proscribed Respondent from allowing foul odors to permeate the subject premises,

allowing Respondent's pets to relieve themselves on the floor of the subject premises,

chaining more than two bicycles to signs or trees directly in front of the building in which the subject premises is located ("the Building"),

disturbing or harassing other tenants or Petitioner's employees in the Building,

playing music at excessive levels,

utilizing any device which causes leaks, such as a washing machine,

failing to provide access to the subject premises,

damaging common areas of the Building,

any other material violation of the lease,

"or similar objectionable conduct."

After the date of the Stipulation, Petitioner moved for relief, alleging that Respondent breached the stipulation.  The Court granted Petitioner's motion by an order dated February 16, 2017 to the extent of setting the matter for a hearing as to whether Respondent breached the Stipulation and what the parties' remedies should be.

The Court held a hearing over the course of eleven days, on April 19, 2017, May 10, 2017, May 17, 2017, June 9, 2017, June 30, 2017, July 6, 2017, August 17, 2017, August 18, 2017, December 1, 2017, January 19, 2018 and February 5, 2018, hearing the testimony of seventeen witnesses and receiving ninety-two exhibits in evidence.

As the issue of the Court to determine at the hearing is whether Respondent breached the Stipulation, the court considers each category of the Stipulation that Petitioner alleges that Respondent breached by category as follows below:

Odors
A real estate agent ("the real estate agent") testified for Petitioner that he shows apartments in the Building, that he knows the subject premises, that he was in the Building in December of 2016 and January and February of 2017; and that the staircase in the common area has a strong odor of cat urine.  The real estate agent testified n cross examination that he, in essence, works for the same entity as petitioner and that he rented out the apartment next door to the subject premises ("the next door apartment") in late December of 2016 for $2,500 although he had listed it for $2,600 initially.

The husband of Respondent's upstairs neighbor ("the neighbor's husband") testified that he does not live in the Building, but that his wife ("the upstairs neighbor") lives in the Building above the subject premises; that he comes to the Building, and that there is an odor of animal urine in the common areas of the Building that is strongest when he passes by the subject premises on the way to the upstairs neighbor's apartment.  The neighbor's husband testified on cross-examination that two dogs live in the upstairs neighbor's apartment; that he is in the Building about two nights a week; that he has two cats; that the last time he smelled something was the week before his testimony (in February, 2017); that sometimes the smell is overwhelming; that the smell fluctuates; that the smell is not always there; and that he has two boxers; weighing fifty-five pounds and sixty-three pounds.

The upstairs neighbor testified that she has been living in the Building above the subject premises for eight years; that she smells cat urine coming from the subject premises, which she recognizes because she has cats; that the smell is stronger, to the point of being overbearing, the closer she has been to the subject premises; that she has seen newspaper in the entranceway of the door of the subject premises.  The upstairs neighbor testified on cross-examination that she has a sensitive sense of smell; that the smell is milder on some days; that her own cat has bladder problems; and that she has not called the City since December because the City does not follow up.

An exterminator ("the exterminator") testified that he has worked for Petitioner for ten years; that he has gone to the subject premises; that he checked the subject premises on December 1, 2016 to check for signs of rat infestation and that he found no evidence that there was rat infestation; and that he smelled a cat odor in the common area of the Building.

The super of the Building ("the super") testified that he is in the Building every day, that the common area of the Building smells like cat urine; that the smell is stronger on the floor where the subject premises is; that he has been inside the subject premises since December of 2016 and smelled the cat urine in the subject premises; that Respondent has cats, a dog, and turtledoves; that he never observed a litter box in the subject premises and that he saw newspapers on the floor of the subject premises for Respondent's pets to relieve themselves.  Petitioner, through the super, introduced into evidence photographs of the subject premises with wet newspapers on the floor.

A member of the LLC that is petitioner ("the landlord") testified that he goes to the Building one a week; that, upon entering the Building, the Building smells like a pet shop or a dirty bathroom; that the odor gets stronger as one ascends the stairs; that, on March 1, 2017, the odor was subdued, but the smell was still there; that the odor was like a bathroom; that he has never seen a litter box in the subject premises; and that he saw newspapers on the floor of the subject premises.   The landlord testified on cross-examination that, on December 15, 2016, there was only a slight odor from the subject premises and was not pronounced; that he did not see urine on newspaper when he came to the subject premises on March 1, 2017; that he did not ask Respondent about a litter box; that he did not come to the subject premises after March 1, 2017.

Another neighbor of Respondent's ("Respondent's first witness"), who lives in an apartment in the Building on a higher floor than the subject premises, testified that she does not smell odors from the subject premises.

A person who knows Respondent and who lives in the same neighborhood as the Building ("Respondent's second witness") testified that he has been to the subject premises many times over the past several years, testified that the subject premises is very sanitary, to the extent that he has not seen unwashed dishes or counters; that he has smelled decomposing vermin coming from a gap between the floor and the wall in the subject premises; and that there are dogs in thirty to forty percent of the apartments in the Building.  Respondent's second witness testified on cross-examination that Respondent keeps training pads for dogs in the subject premises.

Respondent's next door neighbor ("Respondent's next door neighbor") testified that he moved into the apartment next door to the subject premises on March 1, 2017; that the common areas of the Building smell like Respondent has animals there; and that sometimes it doesn't smell like anything.

 Respondent's former next door neighbor ("Respondent's former next door neighbor") testified that he lived in the apartment next door to the subject premises from at least 2013 through 2016; that the building was infested with rats; that he heard rats in the walls while he lived there; that around 2014, he once had an occasion to complain to Petitioner about Respondent leaving personal property in the common areas and about odors; that his relationship with Respondent changed after that, as Respondent removed personal property and as smells dissipated; that there were three or four dogs in the Building; and that he did not move out of the Building because of Respondent, but because of rat infestation in his apartment.  Respondent's former next-door neighbor testified on cross-examination that there had been a stench in the building at one point, but that was before the Stipulation; that he has since become friends with Respondent; and that he was angry at Petitioner because of a dispute he had with petitioner about rent.

A friend of Respondent ("Respondent's fifth witness") testified that he has been friends with Respondent for several years; that he has been to the subject premises about twenty times since the Stipulation; and that he does not smell anything from the subject premises.

Respondent's sixty witness testified that Petitioner hired him to do work in the Building, that a leak involving dirty water affected the subject premises; and that the water left a bad smell in the subject premises.  Respondent's sixth witness testified on cross-examination that he is in a dispute with Petitioner before the Workers' Compensation Board about whether he was an employee of Petitioner or not.

Another friend of Respondent ("Respondent's seventh witness") testified that he has lived in the East Village for about twenty years; that he has known Respondent for about ten years, that he has been to the subject premises many times from November of 2016 through January of 2017 and he did not experience bad smells from the subject premises; that he has observed a kitty litter box in the subject premises.

Respondent testified that he has a litter box in the subject premises and that he changes it every other day.  Respondent introduced into evidence photographs of the litter box.  Respondent introduced into evidence photographs of a deli in the Building below the subject premises.  Respondent testified that the deli is poorly maintained, such that foul odors emanate from the deli.

Some of the witnesses who testified as to odors -- the landlord, the super, Respondent -- were obviously interested witnesses whose testimony the Court can discount as such.  The upstairs neighbor and the neighbor's husband were technically disinterested witnesses, but they clearly have a contentious relationship with Respondent and the Court discounts their testimony as to the odors as biased, not to mention that the upstairs neighbor keeps a number of pets herself,, raising a question about her complaints about odors resulting from other neighbors harboring pets.  The next door neighbor and the former next-door neighbor were both disinterested witnesses who testified that Respondent did not breach the Stipulation in terms of odors.  The next-door neighbor would have an obvious incentive to cure an odor nuisance if Respondent imposed that on him and the former neighbor at one point had a contentious relationship with Respondent, so the Court lends greater weight to their testimony.  The Court thus finds that the preponderance of the evidence does not support a finding that Respondent breached the Stipulation in terms of odors.

Bicycles
The real estate agent testified that he saw bicycles outside the Building.  The real estate agent testified on cross-examination that he saw two or three bicycles, that he did not know whose bicycles they were; and the bicycles on trees or poles were a common sight in the East Village.

The super testified that Respondent told the super that he keeps three bicycles locked to a pole in front of the Building.  Petitioner, through the super, introduced into evidence photographs of the bicycles taken February 26, 2017.

The landlord testified on cross-examination that the bicycles he has observed are on a pole that is twelve to fifteen feet east of the Building.

By the landlord's own testimony, even assuming arguendo that the bicycles locked up outside the Building were Respondent's, the pole in which they are locked up is down the street from the entrance to the building.  A nuisance is a condition that threatens the comfort and safety of others in the building, Frank v. Park Summit Realty Corp., 175 A.D.2d 33, 35-36 (1st Dept.), modified on other grounds, 79 N.Y.2d 789 (1991), or an interference with a person's use of land Domen v. Aranovich, 1 N.Y.3d 117, 123-24 (2003).  Petitioner has not proven that bicycles locked up on a pole down the street from the entrance to the Building threatens the comfort and safety of others in the Building or interfered with anyone's use of the building.

Disturbances of others in the Building

The neighbor's husband testified that he is a retired police officer, that, on Christmas night, 2016, he and the upstairs neighbor encountered Respondent in the Building; that Respondent said something indicating that he had lost his cat and that he blamed the upstairs neighbor and the neighbor's husband for the loss of Respondent's cat; that, on another occasion, he yelled "where's my cat" at them out a window; and that Respondent later apologized to the neighbor's husband and said that the loss of Respondent's cat stressed him.  The neighbor's husband testified on cross-examination that he never heard Respondent use foul language to the upstairs neighbor, only "where's my cat?"; that he had heard rumors that Respondent had told people that the neighbor's husband was demoted from the police department; that he thought that flyers that appeared posted around the building referred to him and the upstairs neighbor by announcing a fictional show by fictional bands named "Early Retirement", "Disgraced Lieutenant", "Two Ugly Boxers", and "Big Plastic Boobs" [sic.]; and that the handwriting on the flyers was the same as the handwriting on the flyers Respondent had posted about his missing cat.  The neighbor's husband testified on redirect examination that he saw the flyer around New year's Day 2017.  Petitioner introduced the flyer into evidence.  The neighbor's husband testified on recross that he was not sure if the flyer was in Respondent's handwriting.

The upstairs neighbor testified that Respondent spit at her on December 1 2016; that, in December of 2016, Respondent, when walking past her, called her a "whore", a "plastic-bodied whore", or a "Canadian whore", accused her of stealing his cat, told her to move back to Canada, told her that she was "nasty," incidents that caused her to get a police report filed; that there were thirty of the fliers that the neighbor's husband had gotten into evidence were on the blocks around the Building around Christmas Eve 2016 that the fliers were the same color as the fliers she ahd seen on the door of the subject premises Respondent had printed regarding his lost cat; and that Respondent plays loud music all the time from morning until two or three o'clock in the morning, to the point where she had to leave her apartment.

The super testified that on February 21, 2017, he attempted to gain access to the subject premises with an exterminator and that Respondent pushed him against a door; that, on a different occasion, respondent called him a rat and offered him two hundred dollars not to testify and that Respondent told him he was a shovel and that someone was using him  The super testified on cross-examination that the only part of his body that was in the door when respondent shut it was the super's foot.

Respondent's first witness testified that she does not hear loud music from the subject premises.

Respondent's second witness testified that he has never heard loud music at the subject premises.
Respondent's next door neighbor testified that he does not hear disturbing noises from the subjject premises.
Respondent's former next door neighbor testified that he never had any issues with music coming from the subject premises.
Respondent's fifth witness testified that Respondent does not play lound music
Respondent testified that the upstairs neighbor taunts him, saying things like, "we got you now" and "you're outta hear"; that the upstairs neighbor has deliberately poured water on him; and that the upstairs neighbor pounded her heels on the floor.

The preponderance of the evidence shows that Respondent printed out flyers attacking the upstairs neighbor and the neighbor's husband and posted them in block around the building as the handwriting on the flyers was the same as the handwriting on Respondent's flyers regarding his cat.  Respondent did not rebut this evidence on his case.  Respondent also did not rebut the testimony of the super to the verbal attacks that Respondent leveled against him. Accordingly, the Court finds that Respondent did "disturb " and "harass" another tenant in the Building and an employee of Petitioner in violation of the Stipulation.

Access on date from the Stipulation

The super testified that he came to the subject premises on December 15, 2016 at 7 p.m. with the landlord; that they knocked hard on the door two or theree times and no one answered, and that they came back that day and called and got no answer

The landlord testified that he arrived for inspection at the  Building on December 15, 2016 with the super; that they rang doorbell of the subject premises and knocked on the door multiple times; that he received no answer; that he returned to the subject premises an hour after that at 8 p.m., and Respondent never appeared.  Petitioner introduced into evidence photographs of the landlord and the super at the subject premises on December 15, 2016.  Petitioner introduced into evidence security footage showing Respondent coming into the Building at 3 a.m. the morning of December 16, 2016

Respondent testified that he did not get forty-eight hours' notice of access for the date of December 15, 2016, as he understood he was entitled to as per the stipulation and that he left the subject premises because he did not feel well that day.

Respondent's seventh witness testified that he was setting up a Christmas tree in the subject premises on December 15, 2016; that Respondent didn't feel wel and went to get medication and that no one came to the subject premises.  On cross-examination, Respondent's seventh witness testified that there may be some doubt that the day he was in the subject premises was December 15, 2016, saying that it could have been December 14, 2016, December 17, 2016, or December 10, 2016.

Respondent does not dispute that he did not provide Petitioner with access to the subject premises.  Respondent's testimony that he did not get notice of access has no merit.  The stipulation was the notice.

Washing machine

The super testified that he observed in 2017 that Respondent keeps a washing machine on top of a bathtub in the subject premises; that pipes run underneath the sink on top of the floor for hot and cold water to the washing machine; and that it is possible to step on the pipes.  Through the super, Petitioner introduced into evidence a photograph of the washing machine a=on top of the tub taken on February 22, 2017.

The landlord testified that Respondent maintains a washing machine on top of a bathtub and that he was unaware of any permit for the hookup of a washing machine.  the landlord testified on cross-examination that he received an email from a plumber stating that the installation of the washing machine was a good installation.

Respondent's second witness testified that he has seen a washing machine in the bathroom of the subject premises that the washing machine does not interfere with his use of the bathroom; and that the washing machine is not installed over a tub, but rather, is adjacent to a shower stall.  Respondent's second witness testified on cross-examination that there is no tub in the bathroom.

Respondent's fifth witness testified that Respondent has a washing machine in the subject premises; that the washing machine is not on the ground; that the washing machine was installed professionally; that the washing machine connects with a water system underneath a sink with copper tubing; that the washing machine rests on top of a part of a bathtub; that Respondent curtained off an area of the tub so that it would be possible to take a shower, although it is not possible to take a bath in the tub; and that the washing machine is removable and portable.  Respondent's fifth witness testified on cross-examination that pipes leading from the washing machine are flush against the tub about two inches off the floor.

Respondent testified that he has a washing machine at the subject premises for the entire time that he lived at the subject premises; that he does not take baths but rather, takes showers and that he obtained a letter from a plumber to assure that the washing machine was properly installed.  Respondent introduced the letter into evidence.  Respondent testified that he never heard from Petitioner that the letter was unsatisfactory.  Respondent testified on cross examination that two pipes run from the washing machine to the back of the tub; that the washing machine sits on top of a platform that was not built at the same time as the pipes; and that he does not know how water gets into the washing machine.

A plumber who Respondent had hired ("the plumber") testified that he is a self-employed master plumber; that he knows the Respondent; that Respondent had sent him a text asking him to not come to Court; (2 Petitioner called the plumber as a rebuttal witness.) that he first met Respondent a year ago; that Respondent did not ask him to visit the subject premises; that he has not been to the subject premises; that Respondent told hi that he installed a washing machine and needed assurance that the installation was proper; that he saw a picture of the washing machine on Respondent's cell phone while in the street somewhere that he saw copper connections to the sink; that he saw a hot water control valve to a shower, which the plumber was concerned about; that the plumber had not seen the washing machine from an angle depicted in a photograph of the washing machine in evidence; that he saw in the photograph pipes running along the ground; that Respondent never showed him a photography of pipes running along the ground; that it is not ordinary plumbing practice run pipes along the floor that none of his plumbers would install a washing machine on top of a bathtub; and that he would not install a washing machine so that it discharges into a tub, ut rather a service sink.

The plumber testified on cross-examination that he signed the letter that Respondent had shown to Petitioner to assure that the washing machine was properly installed; that his letter was an opinion, not a certified report; that it is not possible to install a washing machine on top of a tube and have it comply with applicable codes because the top spins and water is heavy, rendering impossible a permanent securing of the washing machine and creating a danger that the washing machine could fall/

It is beyond cavil that Respondent perched a washing machine on top of a bathtub and ran pipes along the floors the subject premises.  the plumber, the very person who respondent engaged to write a letter expressing that installation of the washing machine was proper, testified at trial that he did not see the parts of the washing machine that he then testified were objectionable, in particular the positioning of the washing machine on top of a bathtub, which is not secure give that washing machines spin and that water is heavy, and that pipes should not run along the outside of the floors.  Accordingly petitioner has proven that respondent has breached that part of the stipulation concerning the washing machine.

"Similar objectionable conduct"

The landlord testified that he observed Respondent on a security system rubbing something on an intercom panel.  through the landlord, Petitioner introduced into evidence security footage taken January 11, 2017 showing Respondent walking into the building and that he at one point makes contact with the intercom panel with his shoulder  The landlord testified on cross-examination that there was glue on the intercom after the video that Petitioner introduced into evidence.

Petitioner introduced into evidence footage from a security camera trained outside the door of the suject premises tht showed some material being thrown out of the door in June of 2017. the landlord testified that kitty litter was found outside the door of the subject premises.  Petitioner introduced into evidence  photograph of the floor outside the door after the video was taken and the actual material collected form thee floor, which did appear to be kitty litter.

Petitioner has not proven that Respondent damaged the intercom. (3 Petitioner attempted to make a submission regarding this issue after the record was closed.  In the absence of a motion, the Court does not consider such evidence at this posture.)  Petitioner argues that a video in evidence shows that Respondent smeared glue on the intercom.  What the video actually shows is that Respondent's shoulder rubbed or grazed the intercom panel before glue was found on it.  For the Court to adopt petitioner's argument, the Court would have to find that Respondent had glue on his sleeve, which he then rubbed against the panel.  the Court finds such a proposition to be absurd and over-determined.  Petitioner has not proved by a preponderance of the evidence that Respondent damaged the intercom panel.

However, Respondent did not rebut the video footage showing him throw kitty litter out of the subject premises and the actual kitty litter itself introduced into evidence.  The Court finds that the Stipulation contemplated proscribing such conduct.

As noted above, the Stipulation was entered into by represented parties in lieu of a hearing on a prior motion of Petitioner that Respondent violated a prior probationary stipulation.  Both parties could have proceeded to a hearing at that time, but they struck a bargain instead.  Binding authority requires the Court to take that bargain, memorialized in the stipulation, seriously.  Matter of Ruth S. (Sharon S.), 125 A.D.3d 978, 979 (2nd Dept. 2015) (stipulations of settlement shall be enforced with rigor); Hotel Cameron Inc. v. Purcell, 35 A.D.3d 153, 155 (1st Dept. 2006) (Stict enforcement of stipulations of settlement serve the interest of efficient disput resolution, and is essential to the management of court calendars and the integrity of the litigation process).

The Stipulation provide that, if the Court found upon hearing such as the one the Court held herein that Respondent beached the Stipulation, the warrant may execute forthwith with no opportunity to cure.  When a stipulation was the product of negotiations between the attorney for both parties and permitted a tenant to avoid an adjudication of a landlord nuisance holdover petitioner and remain in possession of his apartment if the tenant refrained from certain specified conduct for a probationary period, a refusal to enforce such a stipulation would not service equity. Id at 156.  Se also Wadsworth Ventura Assocs. 367 LLC v. Frias 101 A.D.3d 474, 474 (1st Debt. 2012) (a breach of a probationary stipulation permits an eviction of a tenant when the terms of such a stipulation provide for that relief)  The Court further notes that the stipulation provides that "time is of the essence," an enforceable clause 2460 Davidson Realty LLP v. Lopez 43 Misc.3d 130(A) App. Term 1st Dept. 2014), 377 Broom St. Corp. v. McManaman, 20 Misc. 3d 134 (A) (App. Term 1st Dept. 2014), 377 Broome St. Corp. v. McManamon, 20 Misc. 3d 134() App. Term 1st Dept. 2008)  Accordingly, Respondent's failure to provide access on the date in the Stipulation and failure to comply with requirements concerning the washing machine in the subject premises constitute grounds to vacate any stay on the execution of the warrant of eviction, in addition to Respondent's throwing of kitty litter outside the door of the subject premises.

In the interests of permitting Respondent an opportunity to vacate the subject premises without being evicted, the Court grants Petitioner,'s motion but stays execution of the warrant through March 7, 2018 for Respondent to move out of the subject premises.  On default, the warrant may execute on service of a marshal's notice

Court denies as moot Petitioner's motion, made at the hearing, to strike Respondent's testimony because his answers on cross-examination were evasive.

The parties are directed to pick up their exhibits within thirty days or they will either be sent to the parties or destroyed at the court's discretion in compliance with DRP-185.
This constitutes the decision and order of this Court.