The petitioner, DHB4 LLC ("Petitioner"), by its counsel, Burgess & Miraglia, P.C., filed a Petition to Recover Real Property in a Hold-Over proceeding against respondent, Arjealy Wisseh ("Respondent"). Following the Court's initial scheduled appearance date before the Hon. Michael A. Sciortino, Acting Judge of the Rochester City Court, a hearing was held on October 18, 2016 and thereafter continued on October 21, 2016. The hearing was to determine whether the Petitioner should be granted a Warrant of Eviction to evict the Respondent as an objectionable tenant from her residence located at 1055 South Plymouth Avenue, Apartment 5, Rochester, New York 14608 ("leased premises"). The Court received four (4) pieces of evidence from the Petitioner including a Notice of Lease Violation (Plaintiff's Exhibit "1"), Email Correspondence of June 13, 2016 (redacted) (Plaintiff's Exhibit "2"), Email Correspondence of June 16, 2016 (redacted) (Plaintiff's Exhibit "3"), and Email Correspondence of June 28, 2016 (Plaintiff's Exhibit "4"). In addition, the Court received five (5) pieces of evidence from the Respondent including a 10-Day Notice Terminating Tenancy of September 13, 2016 (Respondent's Exhibit "A"), Text Message of June 15, 2016 at 11:50 p.m. (Respondent's Exhibit "B"), Email Correspondence of August 30, 2016 (Respondent's Exhibit "C"), Envelope with postmark of September 17, 2016 (Respondent's Exhibit "E"), and 10-Day Notice Terminating Tenancy of July 13, 2016 (Respondent's Exhibit "F"). What were marked for identification purposes as Respondent's Exhibit "D" and Respondent's Exhibit "G" were not received into evidence by the Court.

In addition, the Court heard from four (4) witnesses for the Petitioner including Joseph [*2]D'Alessandro, Lisa D'Alessandro, Alexander Loughlin, and Ileana Romero. The Court heard from one (1) witness for the Respondent that included Arjealy Wisseh, the Respondent herself. As the Court noted following closing arguments, the Court would issue a written decision based upon the facts presented and substantive law.

The Petitioner contends that the Respondent's alleged objectionable and illegal conduct while a tenant at leased premises constitutes a substantial and material violation of her lease agreement at paragraph 14 as well as New York Real Property Actions and Proceedings Law §711(5) (Respondent's Exhibit "A"). The Petitioner alleges that the numerous complaints from other residents of screaming, loud noises and cursing coming from the Respondent's residence, threats to other residents and employees of the landlord that have required the assistance of the City of Rochester Police Department on several occasions, all violate the right to peaceful enjoyment of tenants and staff and constitutes objectionable conduct. If the Court does so conclude that the Respondent is an objectionable tenant, then the Petitioner is entitled to terminate the Respondent's tenancy and have the Respondent removed as a holdover tenant following this proceeding. The Respondent opposed the Petition in full and argued that she is not an objectionable tenant but rather is interested in living comfortably with the other tenants in the building as she has in the past being the building's first tenant. Respondent argued that she was being responsive to how other tenants and staff have treated her during the tenancy, although she had conceded to using vulgar language to another tenant and conceded to hitting her own ceiling with an object which ultimately was aimed at disturbing the resident living above her to the point where the resident and her guest came down to request the banging noise to stop. Notwithstanding, Respondent argued that she had been consistently mindful of the other tenants and they had not been mindful of her in exchange.

As indicated above, the Court heard from four (4) witnesses for the Petitioner. Among the proof during the first hearing date was the testimony of Joseph D'Alessandro who was the building manager who testified that the Respondent was loud, aggressive, disruptive, and during an attempted conversation started yelling and screaming outside of the building on the sidewalk the following aimed at the landlord: "Joe D'Alessandro is a racist!" These interactions, according to the building manager, were disruptive to other tenants and staff; and, building management has a responsibility to the other tenants in the building. The building management also offered the respondent to move into another property in an effort to accommodate the respondent.

Lisa D'Alessandro, the wife and building partner of Joseph D'Alessandro, also submitted testimony on behalf of the Petitioner and was a direct witness to what she characterized as a verbal attack by the respondent when the respondent was in the rental management office to make a complaint against another tenant who was creating an unreasonable noise. Ms. D'Alessandro advised respondent that management received multiple complaints from other residents about respondent that included respondent screaming at others, waiving her arms aggressively towards others, pounding upon her ceiling and throwing objects at the ceiling. Ms. D'Alessandro also was a direct witness to an interaction with respondent where respondent used numerous profanities, yelling, and very aggressive and threatening behavior in the management office to the point where respondent was asked by Ms. D'Alessandro to please leave the office and only contact management in writing from that point forward.

Alexander Loughlin, a tenant in the building that resides directly above the respondent, [*3]also testified in the proceeding. Ms. Loughlin had a lot of contact with the respondent that notably started off as cordial between the parties but slowly deteriorated. Ms. Loughlin testified that the respondent had used profane words towards her including, "bitch", "fuck off", and other profane statements including "You're gonna see what I'm gonna fucking do to you!" Ms. Loughlin also denied causing an intentional act that was aimed towards disrupting respondent's tenancy. Moreover, Ileana Romero, is the Office Assistant who worked in the management office, interacted with respondent and was a witness to respondent being verbally aggressive and walking around the management office stomping her feet while Ms. Romero was sitting on the couch in the management office working on her laptop when the respondent was leaning in towards her in an aggressive manner. Ms. Romero did state that respondent was clearly upset but had preferred that the respondent acted in a more professional manner towards her and not in an aggressive manner.

Following the above four (4) witnesses, Petitioner closed its proof upon this Petition and Respondent herself testified that she is not an objectionable tenant but rather a caring and compassionate tenant that expresses herself differently than other individuals, but never intended to be threatening or aggressive to others with her body language. Respondent testified that she was being responsive to how other tenants and staff have treated her during the tenancy which she felt was based upon her race more than anything. Respondent did concede however to using profane language to another tenant as she was very upset at the time. Respondent also conceded to hitting her own ceiling with an object which ultimately was aimed at disturbing the resident living above her to the point where the resident and her guest came down to request the banging noise to stop. Respondent also testified that she was not told she could relocate to another building. Respondent also reviewed the emails she received and those she drafted in response to the allegations and also complaints she had against Ms. Loughlin living above her, which she argued went unanswered. Respondent argued that she had been consistently mindful of the other tenants and they had not been mindful of her in exchange. Respondent closed her proof.

As stated above, the purpose of this summary proceeding is to determine whether Respondent's alleged objectionable conduct while a tenant of the leased premises constitutes a violation of her lease agreement such that the Petitioner is entitled to terminate the Respondent's tenancy and have the Respondent removed as a holdover tenant. According to section 711(1) of the New York Real Property Actions and Proceedings Law, and case law interpreting that relevant section, the Petitioner has the burden of proof to establish by competent evidence that the Respondent is an objectionable tenant to the satisfaction of the Court. See, Elliman and Co., Inc. v. Karlsen, 59 Misc 2d 243 (Civ. Ct. New York County 1969). The courts have generally held that the objectionable conduct must be a recurring event and not merely an isolated incident. See, Kaufman v. Hammer, 49 Misc 2d 773 (Nassau Co. Dist. Ct. 1966). An exception to this general principle is where the Court finds that a one-time incident is of such a serious and egregious nature as to constitute objectionable conduct, such as, for example, where a tenant shot another person at an apartment complex. See, 160 W. 118th St. Corp. v. Gray, 7 Misc 3d 1016(A) (Civ. Ct. New York County 2004). Implicit in the commencement of a holdover proceeding under section 711(1) of the New York Real Property Actions and Proceedings Law, however, is the service of a notice setting forth the reasons for termination and a termination date, since one obviously cannot hold over without some notice terminating the tenancy. See, Elliman, supra; see also, Valley Courts v. Newton, 47 Misc 2d 1028 (Civ. Ct., New York 1965). [*4]It is initially noted that the Petitioner did in fact serve a 10-Day Notice Terminating Tenancy of September 13, 2016 as introduced without objection as Respondent's Exhibit "A". As this jurisdictional requirement was satisfied, the Court may now turn to whether the Petitioner could meet its burden of proof to submit competent evidence that Respondent is an objectionable tenant warranting removal after the hold over date in the Notice to Vacate.

As indicated above, in this summary proceeding, the parties participated in a fair and impartial hearing on multiple dates and submitted multiple pieces of evidence on their behalf and in support of their respective positions and allegations. The sworn and credible testimony of the witnesses all support the conclusion that Petitioner has met its burden of proof in demonstrating by competent evidence that the respondent is an objectionable tenant and that respondent's conduct is reoccurring conduct and not an isolated incident. The competent evidence and conduct as introduced was to the Court's satisfaction to conclude that Respondent is an objectionable tenant. Although Respondent may have felt at times that she had good intentions to act, the means by which she proceeded were objectionable and the tenants and visitors of Leased premises should not be subjected to such conduct which disturbs their peaceful enjoyment. Moreover, while Respondent alleged she felt she was subjected to discrimination based upon her race, this Court finds nothing in the sworn testimony that supports respondent's argument. Accordingly, as the Petitioner properly noticed the Respondent to vacate the leased Premises (Respondent's Exhibit "A"), and the Respondent has not vacated the leased Premises and is in holdover, the Petition is granted and the Petitioner is entitled to the relief requested including possession of the leased premises and a Warrant of Eviction shall issue but stay as of November 28, 2016, wherein it shall be effective.

IT IS HEREBY ORDERED, DECREED, AND ADJUDGED THAT the Petition filed by Petitioner, DHB4 LLC, is GRANTED and the Petitioner is entitled to possession of the leased Premises located at 1055 S. Plymouth Avenue, Apt. 5, Rochester, New York 14608; and,

This constitutes the Decision, Order, and Final Judgment of the City Court in the City of Rochester, County of Monroe, State of New York.