Landlord appeals from an order of the Civil Court, New York County (Anthony J. Fiorella, Jr., J.), entered on or about September 20, 2004, after a hearing, which permanently stayed execution of the warrant of eviction in a holdover summary proceeding.

PER CURIAM:

Order (Anthony J. Fiorella, Jr., J.), entered on or about September 20, 2004, affirmed, without costs.

After trial, Civil Court (Elsner J.) determined that tenant breached his tenancy by allowing three roommates to occupy the combined stabilized apartment premises. No appeal was taken from the final judgment entered on the holdover petition. The sole issue before us is whether tenant cured the breach in the manner directed by the trial court, viz., by "removing one occupant from the premises" within 10 days. On that issue, the hearing court (Fiorella, Jr., J.) credited the testimony offered by tenant and his witnesses that one of the three roommates (Marceu) had vacated the premises within the requisite time period, i.e., on or before August 10, 2003. We have no cause to disturb the hearing court's findings of fact and credibility (see Claridge Gardens, Inc. v Menotti, 160 AD2d 544 [1990]). Nor, contrary to landlord's contentions, are the bona fides of tenant's cure undermined by the tenant's own occupancy status during or after the cure period or by what the hearing court found to be the "brief," "temporary" [*2]presence of two other apartment occupants months after Marceu's departure.

In the absence of a cross appeal by tenant, we have no occasion to address the propriety of the trial court's issuance of the underlying possessory judgment.

This constitutes the decision and order of the court.
I concur I concur
Decision Date: April 5, 2006