Landlord appeals from an order of the Civil Court, New York County (Schlomo S. Hagler, J.), entered February 3, 2005, after a hearing, which denied its motion to vacate the stay of execution of a warrant of eviction and for entry of a money judgment in a commercial holdover summary proceeding.

Per Curiam:

Order (Schlomo S. Hagler, J.), entered February 3, 2005, affirmed, with $10 costs.

Giving due deference to the hearing court's findings of fact and credibility, we find no basis to disturb the court's determination that tenants did not breach the so-ordered stipulation settling this commercial holdover proceeding. The evidence supports a finding that tenants timely submitted kitchen renovation plans, as required by section 11(H) of the stipulation. The court reasonably could credit the testimony of tenants' witnesses, including a licensed engineer, who testified that the plans submitted consisted of both "as built" plans and the required renovation plans with the proposed alterations to the kitchen. As noted by the hearing court, a comparison of tenants' exhibit "A," the plans provided to landlord prior to the November 16th deadline, and exhibit "E," revised plans submitted thereafter, reveals various substantive changes. However, it is clear that the plans marked as exhibit "A" included the proposed kitchen renovations. That the renovation plans as initially drawn by tenants' engineer were not acceptable to petitioner does not equate with a finding that tenants failed to comply with the terms of the stipulation. Significantly, the stipulation anticipated potential disputes over the adequacy of tenants' plans and required both parties "to attempt to resolve any and all differences in good faith."

We have considered landlord's remaining argument and find it unavailing.
SUPREME COURT APPELLATE TERM FIRST DEPARTMENT

DECEMBER 2005
[*2]

McCOOE, J.P., DAVIS, GANGEL-JACOB, JJ. &
numsign;05-369GERSHWIN PARTNERS, INC. Petitioner-Appellant-v-HOTEL

LOUNGE, INC. and HAROLD KNECHT, Respondents-Respondents

DISSENTING IN PART

I respectfully dissent.I agree that the breach of the trespass provision in the stipulation was de minimis and should be disregarded. I disagree that the time provision in the stipulation regarding the submission of the kitchen renovation was not breached. The kitchen renovation plans were not submitted by November 16th as required by the stipulation.

Paragraph (11)(H) of the stipulation provides in part:

. . .Plans shall be submitted by Respondents for renovations in the kitchen no later than November 16, 2004 that being 15 business days from the date herein. Thereafter the Petitioner shall have no longer than 10 business days to approve or reject the plans. (Emphasis added).

The determinative issue is whether the kitchen plans submitted by the tenants on November 9th were "as built" plans
or "renovation" plans as referred to in paragraph (11)(H). "As built" plans refer to completed work and "renovation" plans refer to work to be completed.

The landlord claims that the plans submitted on November 9th were only "as built" plans and not "renovation" plans. The covering letter sent by the tenants' representative with the plans refers to them as "as built" plans. The tenants disagrees with the landlord and letter and claim that they were both "as built" and "renovation" plans. On appeal, the tenants raised no other defense on this issue including good faith. The landlord gave timely notice of the alleged breach.

Two opposing experts, who were also on the scene factual witnesses, testified as to the type of plans submitted. Michael Zenreich, an architect, testified for the landlord that the plans submitted on November 9th were not "renovation" plans. His testimony was that he had met with Joel Miele, an engineer and the tenants' expert on October 22nd. He did a "walk through" with Miele using Miele's plans, pointing out and making markings on the plans indicating what work had to be done to make the kitchen plans acceptable and it was not done.

Joel Miele testified that he was a licensed engineer retained by the tenants to prepare the plans and to assist in obtaining approval from the Department of Buildings to use the subject space for the restaurant. Contrary to the factual finding by the Trial Court that the plans were both "as built" and "renovation" plans, Miele testified that the "as built" plans were to be submitted "around November 9th" and a "week or ten days later we had to submit kitchen plans." Furthermore the plans submitted on November 9th "reflected the kitchen as I found it." He did not testify that the kitchen plans submitted on November 9th were kitchen "renovation" plans.

Miele testified at the trial on January 11, 2005 that he had only completed the "renovation" [*3]plans (Tenants' Exhibit E) "This morning or yesterday afternoon" and that he had not submitted these plans to the landlord for approval. This admission and Exhibit E establishes that the renovations were not submitted by November 16, 2004 and that the stipulation was breached. I find that the Trial Court's factual findings are not supported by the record.

" On an appeal from a judgment rendered after a nonjury trial, this Court's standard of review is not limited to whether the trial court's verdict is against the weight of the evidence. The Court may "review * * * the record as a whole and * * * grant the judgment warranted"' (citations omitted). Our scope of review is as broad as that of the trial court (citations omitted)" (We're Associates Company v Rodin Sportswear Ltd., 288 AD2d 465, 466 [2d Dept 2001]).

Strict enforcement of the court ordered stipulation is required (see, ABCO Refrigeration Supply Corp. v. Design by Kaiser Corp., 239 AD2d 165 [1st Dept 1997]). Furthermore paragraph 12 of the stipulation provides:

Twelve: Should the Respondents breach any of the aforesaid items 11-A through I, then Petitioner is entitled to move the Court, on notice, to lift the stay and for the immediate execution of the warrant. The Court shall determine, either upon papers, or after hearing, if such is needed, whether or not to lift the stay and direct the immediate issuance of a warrant. It is specifically stipulated and agreed that Respondents are not entitled to any additional notice or time [to] "cure," should any of the above referenced items occur. (Emphasis added).

Exercising my authority to review the evidence and to make new findings of fact when warranted, I would grant judgment for the petitioner, lift the stay of the warrant of
eviction, and grant judgment for the $15,000.00 stipulated attorney's fees. The issue as to amount due and owing to the petitioner is remanded for a hearing.

This constitutes the decision and order of the court.
Decision Date: June 15, 2006