A hearing was held in this holdover proceeding, wherein petitioner seeks to recover possession of Respondent Rogers' apartment based upon a nuisance violation and default under the parties Stipulation of Settlement.

Procedural History

In April 2008, petitioner commenced separate holdover actions against the above named respondents seeking to recover possession of the above noted residential premises due to a claimed violation of a substantial obligation of their respective tenancies. Petitioner alleged that each of the respondents committed a nuisance in their respective apartments, and have substantially interfered with the comfort of other tenants by making annoying sounds. Petitioner served a Notice to Cure on Respondent Rogers in February 2008 and served a Notice to Cure on Respondents J. Jeanty, W. Jeanty and Beauboeuf (herein after "Jeanty et al.") in March 2008. It appears that the basis of the Notice to Cure and summary proceedings commenced by the petitioner are the noise complaints between the respondents; Respondent Rogers has logged complaints against Respondents Jeanty et al., whom occupy the apartment below her, and Respondents Jeanty et al. have logged complaints against Respondent Rogers. Both Respondent Rogers and Respondents Jeanty et al. denied the allegations against them.

On April 9, 2008, both matters were consolidated and adjourned until April 24, [*2]2008 for trial. On April 24, 2008, the parties filed a Stipulation of Settlement. The respondents agreed, inter alia, to be "mindful not to cause disturbing noise during the hours of 11:00 pm and 7:00 am when people are usually sleeping." The parties further agreed,

8. . . .[A] "default" under the terms of this stipulation shall constitute and be

established by the following: disturbing noise(s) that originates from the

subject apartment and can be heard from outside of the subject apartment,

that occurs on three (3) separate occasions within a 60-Day period and was personally heard by and can be confirmed by two (2) non-party witnesses.

9. In the event either of the respondents defaults, the aggrieved respondent

shall note the date, time and provide a detailed description and report the incident to their respective attorneys. On the occasion of three (3) such

defaults, as defined in paragraphs 3, 4 and 8 above, occurring during the

one (1) year probation period, the aggrieved respondent's attorney shall

notify petitioner's attorney in writing to request that the offending respondent's proceeding be restored to the Court's calendar on 3 days notice of motion to respondents' attorneys for entry of a judgment of possession in favor of petitioner and for the issuance of a warrant of eviction against the offending respondent.

By Notice of Motion dated November 3, 2008, petitioner moved to restore the matter to the calendar requesting a final judgment of possession against Respondent Rogers on the basis that she had violated the Stipulation of Settlement by continuing to make disturbing noises and sounds. In support of this motion, petitioners appended a letter dated October 30, 2008 from Respondents Jeanty et al.'s counsel to petitioner's counsel as well as two letters from Respondent W. Jeanty, outlining the defaulting conduct by Respondent Rogers. Respondent Rogers opposed the motion and a hearing was set down to determine whether Respodent Rogers had defaulted under the Stipulation of Settlement.

Findings of Fact:

Petitioner produced four witnesses at the hearing, all of them tenants in petitioner's building and neighbors of Respondent Rogers. Hakim and Billy Jean Mulraine testified that they reside in apartment # 3E, just above Respondent Rogers' apartment. They moved into the apartment in June 2007. In late summer 2007, they started to hear loud bangs and vibrations coming from the floor below, everyday between 10:00 pm and 2:00 am. Mr. Mulraine testified that he went to speak to the tenants in apartments 2E and 1E. He spoke with Respondent Rogers, tenant of record in 2E, who blamed it on the tenants in 1E, Respondents Jeanty et al. He testified that Respondent Rogers informed him that "she bangs in retaliation to what 1E does". By letter dated December 20, 2007, Mr. Mulraine complained to petitioner about the noises allegedly coming from Respondent Rogers' apartment, as well as her behavior. Mr. Mulraine further testified that he became friendly with Respondents Jeanty et al. in April 2008, after Respondents Jeanty et al. provided him with a copy of the petition in this case. He in turn advised them, "If you need a witness, I will do it." Mr. Mulraine stated that he used to keep a log of the sounds, but stopped when he started signing the log kept by Respondents Jeanty et al.. Mr. Mulraine acknowledged that he was never in [*3]the Jeanty's apartment when the noises occurred, but that he would have subsequent conversations with Respondent W. Jeanty to confirm the noises. Mr. Mulraine further admitted that he could not confirm where the noises were coming from, but believed they were coming from Respondent Rogers' apartment.

Mr. Mulraine's wife, Mrs. Billy Jean Mulraine, testified that she heard three types of sounds, a loud bang, a bounce and a stick hitting the ceiling, allegedly coming from Respondent Rogers' apartment below. Mrs. Mulraine and her husband often times signed Respondent Jeanty et al's log book the day after hearing the noises. She further testified that she could not recall the exact dates she spoke with Respondents Jeanty et al. about the noises.

Respondent Wiena Jeanty testified that she has been a resident of the apartment 1E since August 2007. She testified that Respondent Rogers moved into apartment 2E in May 2007 and the problems with noise began in July 2007. Specifically, Ms. Jeanty described the sounds as "someone chasing a mouse with a hammer" and "rolling and dropping a bowling ball." She stated that the sounds were coming from overhead and that the light fixtures would often rattle. In October 2007, Respondent W. Jeanty wrote a letter to petitioner complaining of the noises, and provided a log of the dates and times the noises were heard. After entering in the Stipulation in this case, Respondent W. Jeanty continued to keep a log of the noises. She testified that the Mulraines would confirm the noise, either by telephone conversation or signing her log book the next day. During her testimony, however, respondent acknowledged that she did not carry her diary with her at all times, that the noise descriptions were not specific, and that she never discussed the type of noise heard with the Mulraines. Respondent W. Jeanty also set up a camcorder to capture the noise, which she ran 24 hours a day until the film minutes ran out. The minutes were then downloaded on her brother's computer and placed on discs. In Court, the parties listened to several discs, where thuds were heard on the discs. Respondent W. Jeanty testified, however, that she was unsure where she was in reference to the noise or who was with her a the time the noises were heard.

Respondent J. Jeanty also testified at trial. He stated that he heard loud banging sounds coming from Respondent Rogers' apartment everyday, and that they would often shake the items in his apartment. After entering into the Stipulation, he began to record the noises on a camcorder. He transferred the info from the camcorder to the hard drive on his computer, then downloaded the portions of video with loud noises to the cd-dvd discs presented in court.

Respondent's witness Shaniqua Pelzer testified that she has been a resident of the building for three years. Her apartment and the Jeanty's apartment share a wall by way of each others living room. She credibly testified that due to the age of the building, you can hear everything in the building, including vacuums running, people walking, TVs and stereos. Ms. Pelzer testified that as a student, she spent most of her nights up late studying and would mostly go to bed around midnight. She testified that she heard nothing but normal living sounds, and nothing worthy of complaint.

Finally, Respondent Rogers testified that she has resided in the subject apartment for two years with her son and daughter. Respondent Rogers denies making the noises complained of by Respondents Jeanty et al. and the Mulraines. She testified [*4]that she hears loud music in her son's room late at night, coming from the Jeanty's

apartment below.

Conclusions of Law

A landlord may recover possession of an apartment when a tenant commits a nuisance. Nuisance has been defined as continuing or recurring conduct that is substantially injurious to the comfort and safety of others in the building (Frank v Park Summit Realty Corp., 175 AD2d 33 (1st Dept 1991)). Here, however, the parties entered into a Stipulation of Settlement, wherein they specifically defined the conduct that would give rise to a nuisance or "default" under the Stipulation. Stipulations are favored by the courts and not lightly cast aside" (Sacchetti v Rosen, 11/5/2000 NYLJ 27, (col. 6) (citing Matter of Galasso, 35 NY2d 319 (1974); Morrison v Budget Rental Car Systems, 230 AD 253 (2d Dept 1997)). A stipulation of settlement is essentially a contract and is subject to principles of contract construction and the intent of the parties (Hotel Cameron, Inc. v Purcell, 35 AD2d 153 (1st Dept 2006); Sharp v Stavisky, 221 AD2d 216 (1st Dept 1995)).

Based upon the credible evidence and testimony adduced at the hearing, the Court finds that the petitioner has failed to establish a "default" by Respondent Rogers. The language utilized in the Stipulation is very specific. Petitioners witnesses' testimony failed to establish that the disturbing noises were originating from Respondent Rogers' apartment or could be heard from outside of Respondent Rogers' apartment. Mr. and Mrs. Mulraine both testified that they were always in their own apartment when they heard noises and never outside of Respondent Rogers' apartment or in the Jeanty's apartment. Mr. Mulraine admitted that there are apartments on each side of his apartment and that he could not state with certainty that the noises he heard were in fact coming from Respondent Rogers' apartment. Mr. and Mrs. Mulraine had no independent recollection of the dates, times and types of noises made, as recorded in Respondent W. Jeanty's diary, and neither of them could confirm the exact dates they spoke with Respondent W. Jeanty over the phone. Further, the Mulraines acknowledged that most of the "confirmations" of noise were via a brief telephone call, usually the day after hearing a noise and both of them never confirmed the same noise. When Respondent W. Jeanty called the Mulraines, she either spoke to Mr. Mulraine or Mrs. Mulraine, but did not receive confirmation from both of them. Similarly, there is no confirmation by two non-party witnesses in the log book. Accordingly, the Court cannot find that the petitioner satisfied the terms of the Stipulation, which requires noise confirmation by "two (2) non-party witnesses." Further, the petitioner failed to establish that the noises heard on the countless DVDs submitted in evidence were emanating from Respondent Rogers' apartment. As Ms. Pelzer credibly testified, the building in which all the parties and witnesses' reside is not sound proof; "you can hear everything", she stated. It has long been well established that "apartment-house living in a metropolitan area is attended with certain well-known inconveniences and discomforts" and one cannot expect a noise-free environment (Smalkowski v Vernon, 2001 Slip Op 40071U (Civ Ct Kings Co 2001)). "The peace and quiet of a rural estate or the sylvan silence of a mountain lodge cannot be expected in a multiple dwelling" (Id. (citing Matter of Twin Elm Management Corp v Banks, 181 Misc 96, 97 (Mun. Ct., [*5]Queens Co., 1943)).

Petitioner's motion is denied.

Dated:September 25, 2009

Mount Vernon, New York

___________________________________

HON. ADAM SEIDEN

Associate City Judge of Mount Vernon

To:

Gross & Gross, LLP

Attorneys for Petitioner

9 West Prospect Avenue

Suite 406

Mount Vernon, New York 10550

Nduke Agwu, Esq.,

Legal Services of the Hudson Valley

Attorneys for Respondent Rogers

100 East First Street, 8th Floor

Mount Vernon, New York 10550

Doug Martino, Esq.

Martino & Weiss

Attorneys for Respondents J. Jeanty, W. Jeanty and V. Beauboeuf

22 West First Street, Suite 306

Mount Vernon, New York 10550