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.
November 25, 2018
PETER DIZOZZA
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.
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CIVIL
COURT OF THE STATE OF NEW YORK
COUNTY
OF NEW YORK: HOUSING PART D
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129
AVENUE D, LLC.
Petitioner,
-against-
DASH
HOVING (SAMUEL OSGOOD HOVING),
Respondent.
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AFFIRMATION in
OPPOSITION TO PETITIONER'S MOTION and in SUPPORT OF Respondent's
MOTION for ATTORNEY
FEES
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STATE
OF NEW YORK )
) SS.:
COUNTY
OF NEW YORK )
The undersigned, PETER W. DIZOZZA, an attorney duly
admitted to practice law before the Courts of the State of New York,
hereby makes and affirms the following statements upon information
and belief, under the penalty of perjury pursuant to CPLR Rule 2106.
1. I am the attorney for the respondent in the above
entitled action.
2. I respectfully request the court to allow me to
clarify the Statement of Facts offered by Petitioner's attorneys as
follows.
3. Respondent DID NOT breach the First Stipulation.
Petitioner moved to restore the proceeding to the court's calendar
for a hearing to determine whether the Respondent had breached the
first stipulation.
4. Petitioner's attorneys inaccurately quote the
wording of our second stipulation by stating as follows: “All
breaches were deemed material.” The stipulation states that “All
terms of this stipulation are material and non are de minimus.”
5. Judge Stoller found that respondent had breached
the Stipulation in three ways: “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.”
6. By Decision/Order dated May 7, 2018 Judge Stoller
granted Petitioner permission to restore if Mr. Hoving did not
perfect the appeal in time for its October Term.
7. Respondent filed his own notice to appeal and Judge
Stoller gave him until the October Term to perfect it. With no
activity it would be administratively dismissed. Petitioner moved
three times to dismiss it and timely sent notice to me of their
motions twice.
8. On October 31, 2018, Petitioner's motion was granted
and Respondent's appeal was dismissed WITHOUT OPPOSITION. There was
no opposition because I did not receive petitioner's mailing of the
motion until its return date.
9. This court determined reasonable hourly billing
rates of petitioner's three attorneys in its May 7, 2018 Order only
to set respondent's undertaking, without addressing the hourly value
of the work these attorneys provided to petitioner, respondent and
the housing court.
10. These attorneys bill between $225 and $420 an
hour, often 3 at a time, never less than 2. They believe it is a
worthwhile use of Housing Court Resources to establish that
respondent owes them for responding to their assault because of how
much experience they have.
11. The attorneys for Petitioner have since increased
their demand to the court from approximately $200,000 to
approximately $220,000 because Respondent filed his own notice of
appeal.
12. Since respondent would be paying for their motions,
they did not wait for Respondent's notice of appeal to be
administratively dismissed, nor did they need to follow Judge
Stoller's decision allowing them to restore if Mr. Hoving did not
perfect the appeal in time for its October Term.
13. Instead they moved three times to dismiss and as I
received their motion papers twice, I opposed twice. Opposition to
their second motion extended respondent's time into the December
Term, and the Appellate Term third granted their third motion without
opposition because I did not receive it until its return date.
14. Respondent was unable to post an undertaking and
did nothing about going further with his notice of appeal. He
Defaulted. Judge Stoller already addressed the futility of
perfecting the appeal as respondent's conviction in a concurrent
criminal matter was dispositive and would be easily incorporated into
the record herein.
15. The issues supporting denial of fees and dismissal
of further litigation are as follows:
A) Respondent did not receive notice of the most recent
appeal dismissal motion until its return date. The motion was
granted without opposition because petitioner did not provide
respondent with the opportunity to oppose. Furthermore, Judge
Stoller's order did not require petitioner to engage in this further
motion practice.
B) Petitioner conducted a hearing concurrent with a
dispositive criminal matter. As to the dispositive breach claimed,
petitioner's attorneys did not prevail under preponderance when DA
prevailed beyond reasonable doubt.
C) Consider that the reasonable cost for Prosecution of
a proceeding applies here. For Petitioner’s attorneys, there was
no prosecution, only a hearing. The attorney fees for the
prosecution of the proceeding by the people’s DA was covered for
petitioner by the taxpayers. That conviction unequivocally
establishes the breach of the stipulation.
D) Petitioner may seek fees only in the event
respondent defaults under the terms of his agreement, which
respondent never did.
E) Petitioner prevailed on three of their eight
allegations of a stipulation breach.
F) Petitioner never proved a prior breach by
respondent. Petitioner avoided the expense of proving alleged
breaches by entering into a stipulation of settlement, and it is from
that stipulation that petitioner’s attorney fees began accruing.
That respondent breached the first stipulation is a false statement.
G) Petitioner further wasted court resources and muddied
litigation fees by filing a concurrent spurious action to evict
respondent for having a dog. (Landlord Tenant Index # 7793/2016
discontinued on the same day as a December 15th, 2017 inspection.)
(EXHIBIT)
H) Petitioner's attorneys should not make their victim
pay for attacking him from every possible angle, even though they
succeeded in destroying his life and evicting him from his home.
16. The settlement document which controls the
timeline of litigation for this court to consider is our Stipulation
of Settlement dated November 26th,
2016. The following provision in that stipulation enables
petitioners:
“In the event that Respondent defaults under the terms
of this stipulation, petitioner shall be entitled to seek the full
extent of its reasonable attorneys' fees incurred to date and any
future legal fees that Petitioner may incur in the prosecution of
this proceeding.”
17. Respondent can only seek attorney fees if
respondent defaults
upon the terms of his agreement, and while Judge Stoller's eviction
decision found violations which did not amount to a breach, and while
he did find three breaches
which allowed eviction, respondent never defaulted
upon the terms of this agreement. In his May decision, Judge Stoller
specifically uses the word default with its meaning as the parties
intended.
18. The default terms of our stipulation specifically
address the timeliness and amounts of respondent's payments, and
respondent always met them, and no he did not meet the timeliness
required to perfect his appeal, but rather defaulted on that.
19. Petitioner proved to the court throughout the
hearing how important this finding of default was to petitioner's
ability to seek fees, because each time we went to court,
petitioner's attorneys opened the proceeding with a motion for
default upon the terms of the stipulation and each time the court
denied that motion.
20. I beg the court as represented by Judge Stoller. I
respect that the court is authorized and legally obligated to enforce
our mishmash agreement. Please allow me, an attorney who is dreaming
of billing at $150 an hour, as co-drafter, to do my best to
articulate my understanding of what I wrote in collaboration with our
$420 an hour David Tendler in order to bind the parties in the event
of a default...
21. Please note, your Honor, that you also properly
used the word default in your May Decision in that respondent did
indeed default on perfecting his appeal by the the Appellate Court's
October Term, but not upon the payment terms relating to default in
the stipulation.
22. As far as backdating attorney fees, there were no
reasonable attorney fees owed by respondent to date of November 26th,
2016 because both parties entered into a stipulation of settlement
without addressing petitioner's allegations up until that time.
23. The entire cost and wasting of housing court
resources in conducting a hearing on a breach of the second
stipulation, delaying the prosecution of the dispositive criminal
matter, is what makes deniable petitioner's motion.
24. To conduct a hearing during a concurrent
dispositive criminal trial, accrued fees that are unreasonable.
25. Petitioner conducted a hearing simultaneously with
a dispositive criminal prosecution.
26. And now petitioner's attorneys provide a record of
their billing.
27. Legal Aide and District Attorneys delayed and
adjourned their prosecution because they had to obtain transcriptions
and analyze sworn testimony of the same witnesses that of course were
appearing in the criminal matter, and they were doing so as
petitioner produced additional sworn testimony by a hearing that the
criminal matter's outcome could have resolved in 10 minutes.
28. The $200,000 worth of petitioner attorney work
failed to prove the very matter the DA proved.
29. All housing court success to petitioner is the
result of respondent's irrational and confused actions. Respondant
lost his home not because of any work of petitioner's attorney but
because of his own actions taken under the color of “righteousness,”
through duress and confusion.
30. In addition, Petitioner can not charge respondent
for those allegations he did not prove.
31. Must the court surmount a layperson's confusion
regarding the criminal nature of “prosecution” and its
non-applicability to conducting a simple hearing?
32. Petitioner is seeking a punitive penalization of
his tenant adversary for defending himself based upon whatever fight
that tenant could muster.
33. Petitioner's attorneys want to court to charge
respondent for defending himself!
34. If we factor in that petitioner's litigation went
on for so long ONLY because that is how long it took for the DA to
win the case for petitioner on a breach that we agreed was a
dispositive breach, for which a hearing would take 10 minutes, then
we can dismiss this motion as moot.
35. We agreed that if respondent was found guilty that
there was no issue as to whether respondent breached the stipulation.
36. That criminal prosecution was prolonged for over a
year, because petitioner's attorneys ran a hearing concurrent with
it, at the expense of precious housing court resources, and at the
unreasonably impressive hourly rate charged by Petitioner's attorneys
while we the taxpayers were paying the City DA.
37. Petitioner's attorneys' willingness to go forward
when the dispositive matter was before Criminal Court DELAYED THE
CRIMINAL COURT MATTER WITH OVERLAPPING TESTIMONY which both legal
aide and the ADA had to obtain from housing court as it was being
produced.
38. Then, please note that for all their efforts,
Petitioner's attorneys themselves FAILED TO PROVE THE CRIMINAL MATTER
by a preponderance of the evidence when the taxpayer funded District
Attorney's Office was able to prove it beyond a reasonable doubt.
39. So we return to our stipulation. Our terms and are
clear in our collaboratively crafted agreements. The shades of
meaning are specifically agreed to be not de minimus: Therein the
actions in each paragraph are defined as either Breach, Violation or
Default. Respondent agreed that petitioner could only seek attorney
fees if respondent defaults upon the terms of his agreement.
40. In the decision permitting eviction of respondent
from his home, the court found violations which did not amount to a
breach, and three incomprehensible breaches which as stipulated by
the unequal parties allowed for execution of eviction. However,
respondent never defaulted upon the terms of this agreement. The
default terms of the agreement address issues of timeliness of
payments.
41. To prove to the court how important this finding of
a Default was to petitioner's ability to seek fees, each time we went
to court petitioner's attorneys opened the proceeding with a motion
for default upon the terms of the stipulation for failing to pay in
time, and each time the court denied that motion because respondent
had not defaulted.
42. Petitioner won eviction on the limited grounds of
what respondent did as a result of harassment and confusion.
43. Petitioner's attorneys by moving this court to
address attorney fees on the above matter raise substantive issues to
be considered by the court before further wasting its resources
herein.
44. Reasonableness is the standard. This is not a
standard upon which a legal professional needs to assess. What would
a layperson believe is reasonable in the petitioner's extravagant and
wasteful prosecution of this proceeding?
45. This is why the court must stop here and deny
petitioner's motion. We cannot surmount the confusion regarding the
criminal nature of “prosecution” and its non-applicability to
conducting a simple hearing after which the petitioner is using the
Housing Court resources to seek punitive penalization of his tenant
adversary simply for defending himself.
46. Nor need we return to housing court now when the
parties themselves agreed only a default
would allow petitioner to seek attorney fees.
47. Petitioner's own attorneys, not by their
exploitation of housing court resources, but by causing respondent,
by his own actions, to crack under the psychological perception of
persecution that caused him to lose his home.
48. Now they ask the court to call its hearing a
"prosecution of this proceeding," when in fact they delayed
prosecution of the criminal proceeding that was dispositive of this
matter, and which had a price tag of work by other attorneys, the
district attorney and legal aide, who are on the public payroll.
49. Most recently, without giving respondent the
opportunity to oppose their most recent motion, such that it was
granted on default, they are now claiming that the more respondent
defended himself the more he would have to pay.
50. This is counter-productive to our exercise of our
constitutional rights.
51. In the interest of justice the court must dismiss
further litigation on this matter because our stipulation terms and
are clear in our collaboratively crafted agreement and their shades
of meaning are specifically agreed to be not de minimus. Petitioner
won eviction in housing court only on the limited breaches from what
respondent did as a result of harassment and confusion. Again this
is while the criminal matter is pending and being delayed by this
concurrent litigation.
52. Is it a worthwhile use of housing court resources
to consider the nominal attorney fees earned ON THE LIMITED GROUNDS
UPON WHICH PETITIONER PREVAILED.
Petitioner prevailed as follows:
53. To quote from the February 22nd
decision, this eviction is occurring
because “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.”
54. Specific to a nuisance stipulation eviction, while
respondent did not admit to throwing kitty litter into a common
vestibule, he mistakenly relied upon Judge Stoller's ability to see
and take his own judicial notice of the following:
Petitioner’s surveillance video evidence of the area
where kitty litter was allegedly thrown was not the area cleaned by
respondent's witness
Nor was the physical evidence held by the court
gathered from where the alleged kitty litter would have landed.
55. As for respondent not being home when respondent
sought to invade the home with an inspection on December 15th,
2016, respondent admitted that he was not and could not be there that
evening. A simple admission costs nothing to prove. Furthermore,
the stipulation specifically included that December visit in the
invasion of privacy notice requirements.
56. And the third finding warranting respondent's
eviction was also an admission by respondent.
Respondent simply left in his apartment a portable
washing machine, when all he had to do to comply with the stipulation
was to take it out. Instead respondent installed mounting and piping
that only served to show Judge Stoller how challenged respondent was,
and how far removed from understanding his agreement he was in trying
to appease petitioners. His confusion, and mine for that matter,
regarding mounting of portable type of washing machine, became a
windfall for petitioner.
Respondent’s own plumber refused to help him comply
with petitioner's requirements, but then petitioner was therafter
able to bring that same plumber to appear on behalf of petitioner to
show the court how ill-advised and misguided respondent was in trying
to mount a portable washing machine.
57. The court found that these three irrational actions
of respondent rose to the level of a breach of the parties’ arms
length stipulation, such that the court granted petitioner the right
to evict their rent-stabilized tenant on a nuisance holdover for
actions that no one would consider rise to the level of evict-able
nuisance. Petitioner thereafter returns to our carefully worded
stipulation to bring us back to housing court.
58. The prior pleadings petitioner used to convince
Judge Stoller of its longstanding problem with respondent, are
unproven legal documents. The parties settled the dispute they
created without considering their merit when the only 8 issues
petitioner litigated resulted in an eviction AS THOUGH there was a
proven prior history.
59. The court in its interpretation of the stipulation
has confirmed that therein the parties made a distinctions between
deminimus terms in the stipulation, specifically between default,
violation and breach.
There can be no disagreement between the parties over
the interpretation of the terms without confirming the degree to
which there was not a meeting of minds and that the stipulation
should not be enforced.
60. Although the court lets the stipulating litigants
chart their own course, the court interpreted for us what course we
charted.
The court has already granted petitioner the leeway that
he did not, even though the stipulation says he must, notify the
parties while exercising a right of inspection on December 15th,
2016.
The court gave petitioner the right not to follow the
terms of the stipulation by stating that the stipulation itself was
all the notice respondent deserves, even though the December
Inspection is included in the notice requirements agreed to by the
parties.
61. The court interpreted the stipulation in favor of
petitioner although its end result was unconscionable.
Therefore let the court allow us to rely upon the shades
of meaning of the words so expensively crafted therein. After all,
Petitioner is asking him to pay for writing them.
62. The fact that respondent was represented by an
attorney, me, resulted in petitioner having the support of the court
in awarding the petitioner the right to its unconscionable remedy.
63. There is a reason Petitioner in his prior motions
for fees specifically misquoted our stipulation by writing therein
that “All breaches were deemed material.”
64. The stipulation reads as follows: “All terms of
this Stipulation are material and none are de minimus.”
65. The TERMS of the stipulation are Violation, Default
and Breach, and none of the shades of meaning between those three
terms are de minimis.
66. With regard to “de minimus,” the housing court
infers case law but it also respects the meaning of de minimus within
the understanding of the parties.
67. Petitioner turned housing court into stipulation
enforcer. It should not be too much for respondent to ask of the
court, therefore, that it address the precise language of the
stipulation.
68. If the court is to permit the parties to rely upon
breaches of the
stipulation as the basis for respondent losing his home, then only
the plain language of “legal” terms should apply. Therefore,
please respect that the stipulation does not say all breaches were
deemed material. The stipulation says all
terms are deemed material.
69. The court has already done enough decoding of the
parties' stipulation in favor of petitioner. For example, and not to
reopen the proceeding but to consider this in light of the
petitioner's sought after attorney fees, the stipulation's Paragraph
16 applies to stipulation paragraph 10 because 10 states that the
visit on December 15th
at 7PM is “to inspect.” Therefore that invasion into Respondents
home, as all invasions therein, are governed by Paragraph 16, which
sets the precise terms by which respondent grants Petitioner his
right to inspect, his right to invade the privacy of respondent, and
thus the December inspection is specifically mentioned and included
in Paragraph 16. Nonetheless the court found therein a breach.
Should respondent now be obligated to pay petitioner's attorneys for
the cost of this confusion?
70. Respondent prevailed on most of the issues raised
by the petitioner, and did so at great cost, both emotional and
monetarily. And he could not bear the cost of, but rather defaulted
in appealing this matter.
71. Therefore, in establishing the reasonable charge
for attorney fees is the clarity and specificity that the attorneys
have achieved in their stipulation bringing us to a hearing in the
first place.
72. A careful reading of the stipulation establishes
that the terms Breach, Violation and Default are clearly not
synonymous. Each is used independently in a differing paragraph and
the three terms are assigned specific meaning in each of their
appearances therein.
73. It is that careful and concise word-work that this
attempt at achieving a court-ordered hand-out for the benefit of the
Petitioner at the expense of the Respondent is based.
CONCLUSION
74. Again, I come forward for respondent to oppose the
actions of petitioner and his attorneys. Now they will to ask the
court to penalize respondent for opposing this, their latest
frivolity by adding more fees for having to address it.
75. I also wish to draw your honor's attention to the
conclusion of their current motion to you to restore for a housing
court hearing on attorney fees. They conclude their affirmation by
calling this motion my motion, which they further conclude should be
denied.
76. Yes, it is petitioner's motion and yes it should be
denied.
77. I understand that in proving respondent is crazy
that Petitioner's attorneys have lost their minds but now they are
trying to make me lose mine too.
78. I suppose yes, it is a good idea to turn my
opposition into a motion to dismiss any further imposition on housing
court resources.
79. I am a city taxpayer, too, and would horrified to
see how million-dollar-attorneys exploit the resources of our housing
court.
WHEREFORE, this proceeding must be dismissed in the
interest of justice. There is no issue to support petitioner's claim
that it is seeking “reasonable” attorney fees. Petitioner agreed
to do so only for costs in prosecution of the proceeding, said costs
ultimately born by the taxpayers in the successful criminal
proceeding prosecuting respondent. Petitioner also agreed to seek
fees only in the event respondent defaults, which he never did, and
that the parties have such other further and/or different relief as
the court deems just and proper.
Dated: New York, New York
November 21, 2018
____________________________
PETER W. DIZOZZA, Esq.
Attorney for Defendant
321 East 12th
Street #8
New York, New York 10003
(917) 915-7635
TO: CORNICELLO, TENDLER ET AL
Attorney for Plaintiff
2 Wall Street (20th Floor)
New York, NY 10004
212-994-0260
EXHIBITS
A Civil Court timeline
B Criminal Court timeline
C Respondent's affirmation
in opposition of petitioner's concurrent eviction action and
stipulation of discontinuance.
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CIVIL
COURT OF THE STATE OF NEW YORK
COUNTY
OF NEW YORK: HOUSING PART D
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129
AVENUE D, LLC.
Plaintiff,
-against-
DASH
HOVING (SAMUEL OSGOOD HOVING),
Defendants.
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AFFIDAVIT
OF
SERVICE
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STATE
OF NEW YORK }
}
SS.:
COUNTY
OF QUEENS }
I,
Peter Dizozza, being sworn, say; I am not a party to the action, am
over 18 years of age and reside at 321 East 12th
Street, New York, NY. On November 25, 2018,
I served the within Opposition Affirmation by emailing and depositing
a true copy thereof enclosed in a post-paid wrapper, in an official
depository under the exclusive care and custody of the U.S. Postal
Service within New York State, addressed to each of the following
persons at the last known address set forth after each name:
CORNICELLO, TENDLER ET AL
Attorney for Plaintiff
2 Wall Street (20th Floor)
New York, NY 10004
Affirmed
on ____________________________
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