A trial, all digitally recorded, was held in this alleged alterations holdover proceeding on February 8 and March 1, 2007. Testifying for petitioner were two property managers for Dominion Management, which manages the subject building: Denyse Dean and Dana Morrow. Testifying for respondents were Dean and respondent Bridget Lydia.

Based on the credible testimony, the court finds that petitioner did not prove that respondents installed a new radiator (a contention not in the notice to cure or termination notice in any event) or re-wired the apartment. Petitioner did prove, however, that in undertaking alterations without petitioner's consent to the floors, closets, bathroom door, and kitchen cabinets, respondents violated substantial obligations of their rent-controlled tenancy under New York City Rent and Eviction Regulations (9 NYCRR) § 2204.2 (a) (1), which provides that petitioner must prevail if it proves that respondents wilfully violated a substantial obligation of their tenancy by "inflicting serious and substantial injury upon the landlord."

The parties did not debate at trial to any considerable extent whether the evidence showed that respondents recently effected alterations to anything but the kitchen cabinets. Except as to the kitchen cabinets, the evidence is clear about what alterations respondents made and did not make.

As to the kitchen cabinets, the court credits the combined testimony of Dean and Morrow that respondents changed them sometime in 2005-2006 and not, as Lydia claimed, in 1991. Dean and Morrow testified in an honest manner. In opposition to their testimony, the court rejects Lydia's testimony that her then-counsel, an experienced landlord-tenant attorney, told her in 1991 during a rent strike that she was allowed to install new cabinets. Lydia's testimony that her then-[*2]counsel's consented was irrelevant. That supposed consent would not bind petitioner or its predecessor. But that testimony, which is not believable, affects Lydia's credibility negatively.

Additional reasons compel the conclusion that respondents did not replace their cabinets in 1991. Respondents offered no testimony from anyone other than Bridget Lydia (such as a friend, neighbor, or even respondents Kristine or Marc Lydia) to corroborate their contention that their current cabinets have been in their kitchen for many years. Nor did respondents offer pre-2005 photographs with the cabinets in the background, documentary proof about the age or style of the cabinets to show that they are of an earlier vintage or model, or bills showing when they were bought or hung. Respondents' failure to prove something easy to prove — that the cabinets were installed during a time within the six-year statute of limitations (even though respondents did not raise that affirmative defense in their answer) — compels the court to assume that their cabinets are vastly newer than they concede.

Of note as well is that if respondents were tempted to make substantial alterations to other parts of their apartment without petitioner's consent — as they did to their floors and closets — they would not have lacked the compunction to replace their kitchen cabinets.

Respondents argue in the alternative that if the court finds that they installed their kitchen cabinets recently, they should not have to effect a cure by taking them down and replacing them with the original or similar cabinets. Respondents contend under Rumiche Corp. v Eisenreich (40 NY2d 174 [1976]) that installing new kitchen cabinets does not constitute waste or show that they "inflict[ed] serious and substantial injury upon the landlord." But Rumiche did not involve kitchen cabinets. And this court noted just the other week, albeit in a lease-violation proceeding unlike this one and albeit in dictum, that installing new kitchen cabinets is a substantial alteration, not a cosmetic change. (See 259 W. 12th, LLC v Grossberg, 2007 WL 586598, at *3, 2007 NY Slip Op 50304[U], at *4 (Hous Part, Civ Ct, NY County, Feb 20, 2007] [citing Freehold Investments v Richstone, 34 NY2d 612 [1974, mem], revg 42 AD2d 696 [1st Dept 1973, mem], revg 72 Misc 2d 624, 626 [App Term, 1st Dept 1973, per curiam] [finding, although under lease clause that does not exist in this case, that tenant made substantial alterations by, among other things, installing new kitchen cabinets]; accord Britton v Yazicioglu, 189 AD2d 734, 735 [1st Dept 1993, mem] [citing Freehold Investments].) Final judgment for petitioner. Warrant to issue forthwith. Execution stayed for 10 days following service of this decision with notice of entry to permit respondents to cure, as permitted by RPAPL 753 (4), the alterations to their floors, closets, bathroom door, and kitchen cabinets.

While acknowledging respondents' right to cure under RPAPL 753 (4), petitioner urges that respondents post a bond. For that proposition, petitioner cites Marbar, Inc v Katz (183 Misc 2d 219, 227 [Hous Part, Civ Ct, NY County 2000]), in which Civil Court ordered the tenant to post a bond "to secure the cost of any damage caused by removal of the present deck and restoration of the equivalent of the prior deck upon her permanent vacatur from the premises." As the court wrote, "In the event that restoration is not effected upon vacatur, tenant shall forfeit [*3]the bond." (Id.)

This court respectfully disagrees with the Marbar court on whether Civil Court may set a bond in a case involving illegal alterations. Civil Court does not have the equitable jurisdiction to set a bond in such a proceeding. Only Supreme Court has that power. This court will not, therefore, hold a hearing to decide what amount of a bond respondents should post or what the consequences might be if they fail to post that bond.

That said, this court would not set a bond in this case if it did have the jurisdiction to do so. A landlord has numerous remedies, including executing the warrant, if tenants subject to a final judgment do not cure or if they damage the subject apartment while they try to cure. These remedies will arise long before tenants in general or respondents here vacate their home. In light of a landlord's remedies if a tenant does not cure or cures improperly, a bond would be an unnecessary imposition on tenants and superfluous for a landlord, not only in this case, but also in a deck-alteration proceeding like Marbar.

This opinion is the court's decision and order.



Dated: March 1, 2007

J.H.C.