.
Sabrina B. Kraus, J.
BACKGROUND
This summary holdover proceeding was commenced by 11th
ST ASSOCS. LLC
[*2]
(Petitioner) against PETER
TRIGUBETZ (Tenant) the rent stabilized tenant of record seeking
to recover possession of 320 East 11th Street, Rear Building, Room 407 aka
Apt 15R aka Apt 15
New York NY 10003 (Subject Premises) based on the allegation that
Respondent was creating a nuisance in the Subject Premises that interfered substantially
with the comfort and safety of the
landlord and of other tenants and occupants of the Subject Building, which
is an SRO.
PROCEDURAL
HISTORYPetitioner issued a Notice of Termination dated December 13, 2012.
The notice asserts that Respondent maintains the Subject Premises like a "garbage
dump", with possessions stacked from floor to ceiling, and little room to move about.
The notice further asserts that the door to
the Subject Premises can not
fully open because of the number of belongings, and that there is not sufficient room for
Respondent to even sleep in the Subject Premises causing Respondent to sleep in the
hallway of the Subject Building.
The notice further asserts that the condition presents a danger as it prevents
repairs from being done and would prevent emergency personnel such as Firefighters
from penetrating the interior of the Subject Premises when necessary.
The petition is dated January 18, 2013, and the proceeding was initially
returnable February 26, 2013. On the initial return date, Respondent appeared by
counsel, who filed a notice of appearance, and the proceeding was adjourned to April 1,
2013, pursuant to a stipulation wherein Respondent consented to the jurisdiction of the
court and agreed to serve an answer by March 4, 2013.
Respondent filed an answer on March 5, 2013, which asserted a general
denial, failure to serve a notice to cure, and that the Notice of Termination was defective.
On April 1, 2013, new counsel substituted in for Respondent, and the
proceeding was adjourned to May 1, 2013. On May 1, 2013, the proceeding was
adjourned by stipulation to May 29, 2013 ".. .(i)n anticipation of an APS deep cleaning
(this stipulation does not admit any factual allegations) and in contemplation of
settlement."
On June 21, 2013, the parties entered a stipulation of settlement
(Stipulation). The
Stipulation provided that without admitting any of the allegations of the
petition, Respondent represented that he had cured the conditions described in the
petition. The Stipulation further provided:
3)Respondent agrees that he shall not commit or permit the conditions
alleged in paragraphs 10(a) through 10(e) of the petition to exist or recur at the Subject
Premises. In addition, Respondent agrees that his current girlfriend (Mary) shall not call
the police
department, fire department, or any emergency services department or
agency to summon an emergency response to Respondent's room resulting in the forced
entry to the Subject Building or the subject room when there is no emergency requiring
such response and Respondent shall not permit or commit any such conduct by any
person in his control.
[*3]
4)Respondent agrees to be on probation
for a fourteen (14) month period commencing immediately upon this Stipulation being
"so-ordered" by the Court through August 29,
2014, during which time, if Petitioner alleges a breach of paragraph 3 of this
Stipulation, Petitioner may restore this case to the Court's calendar for a hearing to
determine if the past conduct and conditions and present conduct and conditions, or any
combination thereof, either constituted a nuisance or constitutes a nuisance. Respondent
shall not oppose a motion to restore for a hearing. The conduct subject to the claim of
alleged breach of this stipulation must occur during the probationary period but the
motion need not be made during the probationary period. In the event the court
determines that any combination of past and present conduct constitutes a nuisance,
Petitioner shall be entitled to a final judgment of possession and forthwith issuance of a
warrant and Respondent shall not be entitled to cure or claim cure as a defense. Further,
the nuisance need not be ongoing at the time of the hearing for Petitioner to be entitled to
entry of a final judgment of possession and issuance and execution of the warrant.
5)Respondent shall permit access to his room on the following dates between
12 noon and
2 pm for Petitioner's agent or employee to inspect the subject room: 7/29/13;
9/30/13;
11/25/13; 1/27/14; 3/24/14; 5/26/14; 7/28/14.
On October 31, 2013, Petitioner moved to restore the proceeding to the
calendar
for a hearing, based on allegations that Respondent had defaulted on the
terms of the Stipulation. The motion was based on Petitioner's allegation that Respondent
had allowed the clutter condition to "reoccur", and the Subject Premises was cluttered
and created a fire hazard. The moving papers largely reiterated the allegations made in
the original pleadings.
In his opposition papers, Respondent asserted that there is no breach, and
that the Subject Premises was in the same condition on the date the Stipulation was
entered, as it was at the time of Petitioner's motion to restore. The papers further asserted
that Adult Protective Services (APS) conducted a heavy duty cleaning on May 16, 2013.
The opposition further asserted that the motion to restore was retaliation for Respondent's
having filed complaints with HPD in August 2013. Annexed to the opposition papers
was a report from HPD showing that in August
2013, eleven violations were placed on the Subject Premises.
On December 9, 2013, Petitioner's motion to restore was granted to the
extent of setting the matter down for a hearing to determine whether Respondent had
breached the terms of the underlying stipulation of settlement, and what if any relief the
Petitioner was entitled to.
The hearing took place on January 10, 2014, January 30, 2014 and
concluded on
February 27, 2014. The proceeding was adjourned to April 22, 2014, for the
submission of memoranda. On April 22, 2014, the court reserved decision.
THE HEARING
[*4]
At the hearing several documents were admitted into evidence. These
included a series of photographs taken by Petitioner of the Subject Premises between
May 2012 and December 2013 (Exhibits 3-8), and a series of photographs entered by
Respondent (Exhibits A(1)-(7)).
Additionally, entered as Exhibit C in evidence is a document labeled "APS
Case Closing Summary" (Summary) detailing services provided to Respondent up until
the time when APS closed Respondent's case.
The Summary indicates that Respondent received a heavy duty cleaning on
May 16,
2013. The Summary describes Respondent as 73 years old, physically
impaired, but not
mentally impaired, although portions of the summary which relate to
Respondent's impairments
were redacted. The Summary indicates that Respondent's counsel made an
APS referral due to
"the deplorable conditions of his SRO." Under additional comments the
report provides:
Cl was dressed in soil jeans and a tee shirt. His apt was cluttered with boxes
papers and garbage and other debris and smell malordours. Cl was alert and oriented
3x's. C/w spoke w/ him about a hdc and he was agreeable to the cleaning. The cl rent is
current at this time. A HDC was completed 5/16.
C/w will close this case at this time the cl apt was clean and he have an
attorney to assist him in court. Cl does not meet APS criteria he has capacity to handle
his own affairs he demonstrated this when he hired an attorney and the matter (cluttered
apt) reported to intake was resolved by completed HDC.
(Exhibit C, pg 13, Section III, par 23). The Summary appears to indicate that
Respondent was
receiving services from APS well in advance of the litigation. It indicates
that APS made
visits to the Subject Premises on eighteen different dates between September
2, 2009 through
May 20, 2013. The Summary indicates that Respondent had previously
refused a heavy duty
cleaning on January 20, 2010, and on October 20, 2012, when Respondent
met with his
caseworker in the lobby of the Subject Building, but refused to allow the
caseworker to see
the Subject Premises and again refused APS' offer of a heavy duty cleaning.
It is not clear
from the Summary why APS provided services from 2009 through 2013, and
then determined
[*5]
in 2013 that Respondent was no longer
eligible for services.
Also admitted into evidence as Exhibit D are certified documents produced
by HPD, pursuant
to a subpoena, regarding complaints made by Respondent pertaining to
conditions in the
Subject Premises and violations issued. The documents show that fourteen
violations were
placed on the Subject Premises in August 2013, based on complaints filed by
Respondent.
The violations issued eight Class "B" violations for conditions including
defective floors,
painting and plastering, bedbugs, lack of gas for the stove, and broken lock
for the entrance
door. There were also three class "C" violations issued for painting and
plastering, and
accumulated garbage in the rear yard of the building. The documents show
that Respondent
filed complaints about these conditions on July 18, 2013, August 2, 2013,
August 20, 2013,
August 28, 2013, and September 8, 2013.At the hearing Petitioner called Glenn Westerlind
(Wesdterlind) to testify. Westerlind
has been then registered managing agent for the subject building since 2004.
Westerlind
testified that the building is an SRO, which is comprised of two separate
buildings with a
court yard. Westerlind testified that he was familiar with the condition of the
Subject Premises
prior to the execution of the Stipulation, primarily by looking into the
Subject Premises from
the hallway on occasions when the door was left open. According to the APS
Summary the
Subject Premises is one room totaling approximately 250 square feet.
Petitioner introduced
photographs in evidence of the Subject Premises prior to the execution of the
Stipulation
(Exhibits 3 & 4) and photographs taken after the Stipulation (Exhibits 5, 7
and 8).
Westerlind acknowledged that he did not appear for the July 29, 2013 inspection of
the
[*6]
Subject Premises scheduled pursuant to
the Stipulation, nor for any of the inspections
scheduled pursuant to the Stipulation. However, Westerlind testified that he
was able to
observe the Subject Premises in early September 2013 and in November
2013. Westerlind
testified that the Subject Premises was in the same condition at that time as it
was prior to the
Stipulation and that the condition had not improved.
Westerlind testified that he went to the Subject Premises December 10, 2013 because
HPD violations had been issued. Westerlind testified that the work necessary to the
walls and
ceiling of the Subject Premises could not be done because Respondent had so many
belongings
in the Subject Premises.
Westerlind really had not been inside of the Subject Premises by his own admission
since the execution of the Stipulation. In fact, Westerlind acknowledged on
cross-examination
he has never been inside the Subject Premises either before or after the Stipulation,
therefore
his testimony on the issue of the breach of the Stipulation can not be accorded great
weight.
Westerlind has only looked inside the Subject Premises from outside the entrance
door on a
handful of occasions from November 2012 through December 2013.
Petitioner presented no other witnesses. There was no testimony that the
condition in the
Subject Premises had disturbed any other tenant or
occupant of the subject building or that it
created any dangerous condition. Moroever, Westerlind's testimony does not account
for the
dramatic improvement in the condition of the Subject Premises which occurred after
APS did
its heavy duty cleaning in late May 2013.
Petitioner presented no other witnesses and rested after Westerlind's
testimony.
The only other witness to testify was Respondent. Respondent has lived in
the Subject Premises since 1978, for approximately thirty three years. There is one other
tenant who lives on the [*7]same floor as Respondent.
Since last year Respondent testified that the only change to the condition of
his room is that the ceiling leaks more. Respondent could not recall the date of the APS
heavy duty cleaning, but testified that as a result of the cleaning 80% of the items in the
Subject Premises had been removed. Twenty boxes Respondent had been keeping in the
hallway outside the Subject Premises had also been removed.
Respondent appeared disoriented at times and his testimony regarding dates
and other specifics was not entirely reliable. Respondent stated that the Subject Premises
is in the same condition at the time of the hearing as it was immediately after the heavy
duty cleaning by APS. The court credits this testimony. Respondent testified that the
number of possessions in the Subject Premises has remained the same. Additionally, a
large portion of Respondent's ceiling has collapsed or is collapsing and some items are
stacked up to the ceiling to prevent that from happening. Whenever it rains Respondent
experiences leaks in the Subject Premises. The Court found Respondent's testimony on
the conditions of the Subject Premises credible.
DISCUSSION
The court finds that Petitioner failed to sustain its burden and establish that
Respondent had breached the terms of the stipulation. The Court finds that the
preponderance of credible evidence offered at the hearing established that the Subject
Premises was in the same condition at the time Petitioner entered into the Stipulation as it
was at the time of the hearing. Moreover, Respondent's ability to maintain his tiny room
in an orderly fashion is substantially hampered by the severe violations in the Subject
Premises, which Petitioner has long been on notice of and appears to have taken no
actions to correct.
Additionally, Petitioner seems only to have moved to restore the proceeding
and allege a breach in retaliation for Respondent's complaints with HPD.
Based on the foregoing, Petitioner's motion is denied, and the Stipulation
remains in full force and effect.
This constitutes the decision and order of the Court.1
Dated: New York, New York
April 23, 2014
Sabrina B. Kraus, JHC
[*8]
1 Parties may pick up Trial Exhibits within thirty days of the date of this decision
from the second floor record room, Window 9, located at 111 Centre Street. After thirty
days, the exhibits may be shredded in accordance with administrative
directives.