BACKGROUND

This summary holdover proceeding was commenced by 201 WEST 54TH STREET BUYER LLC (Petitioner) against WALTER RODIN (Respondent), the rent-stabilized tenant of record, seeking to recover possession of 201 West 54th Street, Apartment 4-B, New York, NY 10019 (Subject Premises) based on the allegation that Respondent unlawfully and without the [*2]permission of Petitioner altered the Subject Premises.

On November 22, 2013, Petitioner issued a Notice of Termination, terminating Respondent's tenancy effective December 5, 2013. The Notice of Petition issued December 12, 2013, and the proceeding was initially returnable January 3, 2014. On January 24, 2014, Respondent appeared by counsel and on February 4, 2014, Respondent filed an answer denying some allegations in the petition, asserting a breach of warranty of habitability and asserting a counterclaim for attorneys' fees.

On May 12, 2014, the proceeding was assigned to Part L for trial, and the trial commenced. The trial continued and concluded on June 19, 2014, and the proceeding was adjourned to July 28, 2014, for the submission of post trial memoranda. On July 28, 2014, the court reserved decision.

The building has a valid multiple dwelling registration effective November 2013 (Ex 2). Respondent is the rent stabilized tenant of record of the Subject Premises with a legal registered rent of $1179.29 as of July 2013 (Ex 5).

A floor plan of the apartments on the fourth floor of the building, including the Subject Premises was admitted into evidence (Ex 10).

Petitioner's first witness was Steven James Howley (Howley) who is the Super for the

At the time Howley discovered the work, the toilet, sink, and one wall had already been

Howley had never received any complaints from Respondent regarding conditions in the

At Petitioner's request, the court took judicial notice of the HPD database as of May 12,

Howley was last in the Subject Premises approximately one week prior to his testimony. Howley testified that at said time the condition of the walls toilet and sink in the bathroom was still the same. Howley does not know where the sink and toilet that were originally in the bathroom were put.

Howley's handyman, Roman does repairs in the building and had fixed a leak in another apartment in the building in May 2014. Howley was on vacation from April 21-28, 2014, during this period Roman was in charge of repairs in the building. Roman has been doing repairs in the subject building for approximately five years. No one else besides Howley and Roman do repairs in the subject building.

Howley believes permits would b necessary for the demolition of the bathroom. Howley testified that the tub had been damaged and the walls had been removed down to the "bare walls". The sink cabinet and sink has also been removed. The court found Howley to be a credible witness.

The second witness to testify for Petitioner was Wendy Sanchez (Sanchez). Sanchez has been the registered managing agent for the Subject Building for approximately two years. Respondent never asked Sanchez to make any repairs to the bathroom in the Subject Premises. Sanchez has never been in the Subject Premises. Sanchez has sent Roman to the Subject Premises to make repairs.

Howley notified Sanchez of the alterations and Sanchez advised Respondent he had to cease work immediately and that it was illegal for him to perform such work without Petitioner's consent.

The next witness to testify for Petitioner was Hwee Kian Lin (Lin) a licensed architect. Lin has worked as an architect for 14 years . The floor plan admitted into evidence as Exhibit 10 was prepared by the company Lin worked for. Lin testified based on photographs he was shown and the floor plan that had been prepared by his company. Lin was qualified as an expert and testified that in his opinion the work done by Respondent would have required permits to be sought by a licensed professional, and that the owner of the building would have to sign off on such an application. Lin believes permits are required because any work effecting a fire rated wall or a structural wall usually requires permits. The appropriate application would normally include a description of the work to be done, confirmation that no asbestos was involved and the proposed materials to be used.

Lin acknowledged he had no first hand knowledge of the conditions in the Subject Premises, and that a determination of whether the walls were fire rated is normally done by an inspection by a licensed professional and not based on a review of photographs. Lin testified that replacement of an existing fixture such as a toilet would not require a permit. Lin acknowledged that it was possible that the work done in the Subject Premises did not require permits. Due to his failure to have actually inspected the Subject Premises, and his lack of first hand knowledge the court accords Lin's testimony only limited weight.

After Lin's testimony, Petitioner rested.

The first witness for Respondent was Respondent. Respondent has lived in the Subject [*3]Premises since 1986. Respondent testified he has on going problems in the bathroom due to leaks from the 5th floor. In approximately 1999, the ceiling in the bathroom collapsed. The leaks were caused by the tenant who lived upstairs. In 2010, that tenant moved and Respondent no longer had problems with leaks in the bathroom until April 2014.

Respondent testified that in 2008 he wrote a letter to the Petitioner asking for repairs and got no response. Respondent testified he then decided to do his own repairs but did not commence work on same until 2013.

Respondent testified that Howley had been unresponsive to previous requests for repairs in the kitchen, and that he had greater success when he asked Ramon to do repairs. Respondent tipped Ramon when he did the repair. Ramon gave Respondent his phone number and told Respondent he could call him directly when he needed repairs.

Respondent spoke with Ramon about the bathroom in October 2013, and they both agreed it was beyond repair, and needed to be renovated. Respondent testified that Ramon advised him it was not necessary to get permission from Petitioner for such work, and that he could do the work for Respondent at a cost of $10,000.00. Respondent negotiated Ramon down to $5000 to do the job. Respondent testified that he decided to pay Ramon for the renovations, because he knew Petitioner would never fix his bathroom. Respondent's testimony in this regard was not credible.

When Howley discovered what Respondent was doing, Howley told Respondent he had to stop the work because he had not obtained Petitioner's permission to make the alterations. Respondent testified that Ramon then denied ever stating that Petitioner's permission was not required. Respondent stopped the work at that point and has done no further work since.

Ramon has keys to all apartments in the building and used other empty apartments in the building to store materials for the renovations in the Subject Premises and provided Respondent with a key to apartments 4A and 4C, which were unoccupied, to use during the renovations. After Respondent was instructed to stop the work, Andre took back the keys and installed a toilet in the bathroom in the Subject Premises for Respondent to use. Respondent paid $2000 for the renovations. The money was paid to the contractor, not to Ramon. Andre is Ramon's brother-in-law and the individual who did the work. Respondent had no written contract for the renovation with either Andre or Ramon. Respondent acknowledged he had obtained no permits for the work.

There are twenty three apartments in the subject building, only twelve are occupied.

The next witness to testify for Respondent was Roman Andriyovych (Roman). Roman has worked in the Subject Building for five years. Roman does maintenance, and small repairs. Roman testified that he does not have keys to all apartments, contrary to Howley's testimony. The court credits Howley's testimony and not Roman's testimony in that regard. Roman also testified without credibility that he never goes into any apartment in the Subject Building unless he is accompanied by Howley.

Roman was last at the Subject Premises in May 2014. Roman went to investifgate a complaint from the tenant below about a leak.

Roman had been in the Subject Premises in September or October 2013. Roman testified he was there at Respondent's request because Respondent wanted to upgrade his bathroom . Roman testified he recommended a contractor to Respondent, which contractor was Roman's brother in law. Roman did not discuss this with Howley. Roman did not believe that he needed to alert Howley or Petitioner because the work was not going to be a major renovation, just an [*4]upgrade.

Roman was not a credible witness and contradicted himself on more then one occasion during his testimony.

DISCUSSION

Petitioner established that Respondent breached his lease by failing to obtain permission prior to commencing alterations in the bathroom. The alterations made by Respondent in violation of the lease constitute a breach of a substantial obligation of Respondent's tenancy as contemplated by §2524.3 of the Rent Stabilization Code.

Respondent in his answer asserted no affirmative defense regarding apparent authority, waiver or estoppel. Roman clearly did have Petitioner's authority to do work in apartments in the Subject Building, and had free access to said units. Roman acted as Petitioner's agent notwithstanding Petitioner's claims of an independent contractor relationship.

Where a landlord fails to timely object to alterations or participates in the alterations defenses of waiver and estoppel may preclude a forfeiture of the tenancy (Haberman v Hawkins 170 AD2d 377).

However, even if affirmative defenses asserting apparent authority, waiver or estoppel had been pled, Respondent did not establish said defenses at trial. Respondent established that Roman acted as an agent for Petitioner in regards to repairs. However, Respondent failed to prove by a preponderance of credible evidence that he believed Roman had authority to consent to demolition and renovation of a bathroom on behalf of Petitioner. This conclusion is supported by Howley's credited testimony that Respondent immediately attempted to bribe Howley to look the other way when Howley discovered the work Respondent had undertaken. Moreover, Petitioner objected to the alterations immediately upon the discovery of same.

Respondent also attempted to establish that he undertook the bathroom renovation because Petitioner was not making necessary repairs. Where alterations occur after a tenant has given notice of defective conditions and the landlord is unwilling to make the needed repairs a forfeiture of the tenancy is not required (Mengoni v Passy 2545 AD2d 203). However, Respondent neither pled this as a defense, nor offered evidence establishing this defense by a preponderance of credible evidence at trial.Respondent's testimony of a single letter in 2008 seeking repairs was insufficient in this regard. Moreover, the testimony of Howley and Sanchez that no such repairs were requested by Respondent was credited by the court.

While Petitioner proved that Respondent breached paragraph ten of Respondent's lease, Petitioner failed to establish by a preponderance of credible evidence the other allegations in the Petition and predicate notice predicated upon a claim of nuisance.

Petitioner failed to prove the following allegations: 1) that the alterations "significantly interfered with the landlord's ability to operate and maintain the building" and that said alterations "endangered the building's systems and neighboring tenants and first responders;" and 2) That the construction caused damage to the building and neighbors; and 3) that Respondent maliciously or by gross negligence substantially damaged the building" or "altered connections to the buildings structure and systems including the plumbing and electrical systems;"4) that the alterations subjected the landlord to civil and/or criminal penalties.

Petitioner failed to prove the allegations in the Notice to Cure that a basis to proceed against Respondent exists under §2524.3(b) for nuisance, or under §2524.3 ( c) based on illegal occupancy.

Petitioner relies on 259 West 12th Street v Grossberg 89 AD3d 585 (2011) for the [*5]proposition that Respondent should not be entitled to an post trial opportunity to cure pursuant to RPAPL §753(4). However the court finds that there are significant distinguishing facts in this proceeding, which make Grossberg inapplicable, to the extent that case held that the tenant should not have been given an opportunity to cure. In Grossberg the renovations were extensive and had been completed at the time of the trial, in the case at bar the work stopped almost immediately upon Howley's discovery. Moreover, in this case Petitioner's agent told Respondent he could proceed with the work, and referred the contractor and the workers to Respondent to commence the work.

Where, as here, Petitioner alleges both causes of action for nuisance and breach of lease, but only establishes a cause of action for breach of lease, a post judgment cure is appropriate [Cabrini Terrace Joint Venture v O'Brien 18 Misc 3d 1145(a); see also Benjamin Scott Corp v Lydia 14 Misc 3d 1237(A)(holding ten day post trial cure appropriate for alterations made without landlord's permission); Britton v Yazicioglu 189 AD2d 734 (allowing for post judgment cure of alterations made without landlord's consent)].

Clearly, Respondent can cure the removal of the sink, sink cabinet and toilet by replacement of these items with the same or similar fixtures. The floor has not been removed, and the tub has not been removed. No evidence was offered that any plumbing or electrical lines were affected. The only difficult issue regarding an opportunity to cure is the removal of the walls by Respondent. The photographs in evidence show that the sheet rock walls were removed leaving exposed brick and pipes (see eg exs 8 & 9). However, there is no evidence in the record to suggest that the walls cannot be legally replaced by a licensed professional within the ten days allotted by RPAPL §753(4).

Moreover an opportunity to cure seems equitable where Petitioner's agent advised Respondent it was okay to do the work and referred the people doing the work to Respondent. Additionally the court is mindful of the long term regulated tenancy of the Respondent in the case at bar.

Based on the foregoing, the court awards Petitioner a final judgment of possession based on the breach of lease by Respondent. The issuance of the warrant of eviction is stayed ten days to afford Respondent an opportunity to cure by restoring the bathroom to the condition it was in prior to the illegal alterations.

This constitutes the decision and order of the Court.^[FN1]

Dated: New York, New York

___________________Sabrina B. Kraus, JHC

TO:MITOFSKY SHAPIRO NEVILLE & HAZEN LLP