Starrett City Inc. v Perez (2008 NY Slip Op 50027(U))

Starrett City Inc. v Perez

2008 NY Slip Op 50027(U) [18 Misc 3d 1115(A)]

Decided on January 11, 2008

Civil Court Of The City Of New York, Kings County

Kraus, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

BACKGROUND

This summary holdover proceeding was commenced by STARRETT CITY INC.("Petitioner") and seeks to recover possession of Apartment 13G at 1530 Pennsylvania Ave., Brooklyn, New York, 11239 ("Subject Premises") based on allegations that STEPHANIE PEREZ ("Respondent ") was harboring a dog in violation of her lease agreement, and that the dog was creating a nuisance by constantly barking.

This proceeding was originally returnable on November 20, 2006. Respondent requested an initial adjournment to obtain or consult with counsel, and on December 12, 2006, the parties entered into a stipulation of settlement resolving the matter.

In the stipulation, Respondent acknowledged that a dog was temporarily in her apartment, but represented that the dog had since been removed. The stipulation further provided that Respondent would not harbor a dog in the subject premises in the future, without the prior consent of the Petitioner. Finally, the stipulation provided that in the event of a default within twelve months, Petitioner could restore the proceeding to the calendar for "appropriate relief".

On or about November 30, 2007, just two weeks shy of the expiration of the twelve month probationary period under the stipulation of settlement, Petitioner moved for an order restoring the case to the calendar and seeking the entry of a judgment of possession against Respondent based on her alleged default.

Respondent appeared on the motion date, and denied the allegations, and on January 9, 2008, the Court conducted a hearing to determine whether there in fact had been a default under the terms of the stipulation.

THE HEARING

On January 9, 2008 the Court held a hearing on the issue of the alleged default. Petitioner presented the testimony of three witnesses at said hearing. The first witness was Giselle DeJesus, [*2]a property manager for the subject premises. Ms. DeJesus testified that on October 22, 2007, she was on the 13th floor of the subject building, attending the eviction of an apartment neighboring the subject premises. Ms. DeJesus testified that on said date she heard a dog barking from the subject premises.

Ms. DeJesus further testified that she was in the vicinity of the subject premises for approximately twenty minutes, and that she heard the dog barking from the subject premises the entire time she was there. Ms. DeJesus testified she was certain that the dog barking was coming from apartment 13G, because from the barking it was apparent that the dog was immediately behind the entrance door to the subject premises. Ms. DeJesus further testified on cross-examination that there was no dog in the neighboring apartment, that was the subject of the eviction on October 22, 2007.

The second witness presented by the Petitioner was Hope Latta. Officer Latta is employed as a Public Safety Officer by Petitioner, and is a licensed Peace Officer authorized to carry a fire arm and make arrests. Officer Latta testified that on October 22, 2007 she was on the 13th floor of the subject premises, that she heard a dog barking from apartment 13G, and that from the sound of the barking, it appeared that the dog was right behind the entrance door of the subject premises. Officer Latta prepared a Public Safety Incident Report memorializing the incident, which was put into evidence by Petitioner. The Report confirms that Officer Latta heard a small dog barking from the subject premises on October 22, 2007 at approximately 3pm..

The third witness presented by Petitioner was Diane Gordon. Ms. Gordon is also a property manager for the Petitioner. Ms. Gordon testified that on November 1, 2007, she received a report that there was a dog barking in the subject premises. She went to Apartment 13G to verify the complaint personally. Ms. Gordon testified that she did hear the dog barking, and that the dog appeared to be directly on the other side of the entrance door to the subject premises. Ms. Gordon testified that she was there for about five minutes, and that she knocked on the door and/or rang the bell but that the Respondents did not open the door or appear.

In response to petitioner's case, Ms. Perez testified in her own behalf. Ms. Perez claimed that there were two other dogs, in neighboring apartments on the same floor, and that the barking must be from one of said dogs. Ms. Perez testified that she did not bring any dog into her apartment at any time after the stipulation of settlement was entered in this proceeding. Ms. Perez did not offer any other witnesses or documentary evidence in her behalf.^[FN1]

The Court finds credible the testimony of Petitioner's three witnesses that there was a dog in apartment 13G on October 22, 2007 and November 1, 2007. The witnesses testified in a specific manner that the barking was coming from apartment 13G, and there was no doubt from any of these witnesses that the barking could have come from another apartment on the same floor as implied by Respondent.

Additionally, Respondent presented little evidence or testimony to rebut the strong testimony of the three witnesses in support of Petitioner's claim of a breach. Respondent only denied the allegation, and implied that the barking must be coming from one of the neighboring apartments. Significantly, Respondent failed to offer the testimony of any other witness to [*3]support her denial or implication.

Based on the foregoing, the Court finds that Respondent did breach her obligations under the December 12, 2006 stipulation of settlement.

Petitioner has moved for the entry of a judgement of possession based on Respondent's default. The stipulation of settlement between the parties does not provide for any specific remedy in the event of a default, but instead provides that the case may be restored for "appropriate relief." However, it is clear that the original relief sought in the underlying Petition was a judgment of possession.

Based on the forgoing the court finds that Petitioner is entitled to the entry of a judgment of possession based on respondent's breach of the stipulation of settlement.

RPAPL 753(4) provides in pertinent part that in a holdover proceeding brought in the city of New York, where " such proceeding is based upon a claim that the tenant or lessee has breached a provision of the lease, the court shall grant a ten day stay of issuance of the warrant, during which time the respondent may correct such breach." (Emphasis added).

In the case at bar, the proceeding was brought on both grounds of lease violation and alleged "nuisance" grounds. Petitioner did serve a notice to cure, and the premises are not subject to rent regulation, but instead are governed by Article 2 of the Private Housing Finance Law.

Additionally, to the extent a breach was established at the hearing, the nature of the breach established was not that the dog continued to be a nuisance. In fact, as noted, almost the entire twelve month probationary period had expired prior to the motion by Petitioner regarding the breach. Rather the evidence established that the dog was present in the apartment on at least two different dates during the probationary period. Moreover, to the extent that the dog's barking is alleged to be a nuisance, it is the type of nuisance that is readily curable by removal of the dog from the subject premises.

Based on the foregoing, the Court finds that the Respondent is entitled to a ten day cure period in this proceeding. Post v. 120 East End Ave. Corp., 62 NY2d 19 (Ct of App., 1984); 151-155 Atlantic Ave., Inc. v. Pendry, 308 AD2d 543 (2nd Dept., 2003).

Therefor issuance of the warrant is stayed through and including January 29th, 2008, for Respondent to cure the breach by permanent removal of the dog from the subject premises. Additionally, Respondent is directed to contact Petitioner upon cure, and to arrange for an inspection of the subject premises by Petitioner in order to confirm that the dog has been permanently removed from the subject premises.

Petitioner's motion also seeks an order "directing Respondent's to pay Petitioner's attorneys fees". In general only a prevailing party is entitled to recover attorneys fees in a summary proceeding. By obtaining a judgment of possession in this proceeding, Petitioner has obtained the central relief sought, and established itself as the prevailing party in this litigation. Fastis v. 360 Clinton Ave. Tenants' Corp., 272 AD2d 571 (2nd Dept., 2000).

However, attorneys fees may not be recovered by the Petitioner in a summary proceeding unless such recovery is authorized pursuant to statute or the parties' lease agreement. Cier Indus. Co. v. Hessen, 136 AD2d 145 (1st Dept., 1988). [*4]

The moving papers fail to establish any entitlement to attorneys fees in this proceeding, as they are not supported by a lease agreement providing that Petitioner has the right to obtain said fees. Nor do the moving papers include copies of the bills for the attorneys fees, or any other supporting documentation regarding the amount of fees sought. Thus, this portion of Petitioner's motion is denied without prejudice to renewal on the submission of proper papers.

In conclusion, based on the foregoing, Petitioner is awarded a final judgment of possession as against Respondents Stephanie Perez and "John Doe". The issuance of the warrant is stayed in accordance with the above terms and conditions, and the balance of the motion is denied.