| Kimwal Realty Co. v Riodizio, Inc. |
| 2003 NY Slip Op 51451(U) |
| Decided on November 20, 2003 |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Appellate Term, First Department |
Digest-Index Classification: Landlord and Tenant—Summary Proceedings—Sufficiency of Notice to Cure
|
Tenant appeals from an order of the Civil Court, New York County, dated January 30, 2003 (Eileen A. Rakower, J.) which denied tenant's motion for summary judgment dismissing the petition and from a final judgment of the same court and Judge entered February 5, 2003 after a nonjury trial awarding possession and a money judgment in the sum of $12,971.73 to landlord and setting the matter of
attorneys' fees due landlord down for a hearing in a holdover summary proceeding.
PER CURIAM:
Final judgment entered February 5, 2003 (Eileen A. Rakower, J.) affirmed, with $25 costs.
[*3]Appeal from order dated January 30, 2003 (Eileen A. Rakower, J.) dismissed, without costs, as subsumed in the judgment.
There is ample record evidence to sustain Civil Court's findings that tenant committed a nuisance and breached the lease by permitting excessive noise — including repeated instances of loud music and vibrations — to emanate from its street level establishment through the early morning hours for several months, disturbing the quiet enjoyment of building residents. This condition was coincident with a change in the nature of tenant's business from a traditional restaurant to a late-night club. Any efforts by tenant to remedy the situation were either short-lived or ineffectual to control the extreme levels of noise after midnight. The trial court's findings, resting in large measure on considerations relating to the credibility of witnesses,[FN1] are entitled to deference on appeal unless contrary to any fair interpretation of the evidence (see, Thoreson v Penthouse International, 80 NY2d 490, 495 [1992]).
Landlord's notice to cure set forth sufficient facts to enable the tenant to prepare a defense and adequately described the course of conduct which served as a basis of landlord's allegations (City of New York v Valera, 216 AD2d 237, 238 [1995]; D.K. Prop. v Mekong Rest. Corp., 187 Misc 2d 610 [2001] [App Term, 1st Dept]).
We have considered tenant's other points, including its claim that landlord waived the lease violation by accepting rent during a brief period when tenant was [*4]attempting to cure, and find them lacking in substantial merit (see, Jefpaul Garage Corp. v Presbyterian Hospital, 61 NY2d 442 [1984]).
This constitutes the decision and order of the court.