This is a holdover summary eviction proceeding concerning a rent-stabilized apartment and based on allegations of breach of lease and nuisance. Specifically, the petition alleges that Respondent keeps a dog in violation of his lease, and that he is causing a nuisance by refusing to provide access for repairs and by maintaining the apartment in an "unsafe and unsanitary manner."^[FN1] Annexed to the predicate notice of termination were certain Housing Maintenance Code violations issued by the Department of Housing Preservation and Development. Two of those violations, from 2015 and 2017, concerned "excessive storage of material" and "the accumulation of refuse and/or rubbish [and] household articles...blocking free passage to windows, fire hazard ."

That part of the petition concerning lack of access was dismissed by the court (Wang, J.) on Respondent's motion. Petitioner withdrew its cause of action regarding Respondent's dog prior to trial. A trial was held at which each side called one witness: David Nierenberg, managing member of Petitioner, testified for Petitioner, and Respondent testified on his own behalf, via telephone. Prior to trial, the court conducted a judicial inspection of the apartment.

On the date of trial there were four open Housing Maintenance Code violations for Respondent's apartment pertaining to the amount and type of belongings and items kept in the apartment: one issued in March 2014; two issued in May and July 2015; and one issued in [*2]February 2017. They read as follows, in pertinent part:

March 2014: Abate the nuisance consisting of accumulation of household article, boxes, bikes, and furniture (floor to ceiling) blocking free passageway to windows, fire hazard, in the entire apartment.

March 2015: Remove the accumulation of refuse and/or rubbish and maintain in a clean condition the excessive clutter of furniture and household items, creating fire hazard (collier [sic] condition) in the entire apartment.

July 2015: Abate the nuisance consisting of excessive storage of material throughout in the entire apartment.

February 2017: Remove the accumulation of refuse and/or rubbish and maintain a clean condition the household articles, boxes, bikes, and furniture (floor to ceiling), blocking free passageway to windows, fire hazard, in the entire apartment.

Other than the violations, Petitioner presented no evidence to further support its allegation of an unsafe and unsanitary apartment at the time the notice of termination was issued. Petitioner's witness, despite being the property manager for the building for 30 years and visiting the building on a weekly basis, testified that he had no recollection if he had observed any of the conditions complained of in the notice of termination. He first became aware of the alleged conditions of the apartment when he learned of the 2014 violation. But he had no memory of personally observing any of the alleged conditions in the apartment except for a visit in the autumn of 2018, after the case commenced, at which time he observed that the apartment was "filled with belongings," "some good and some not," "scavenged belongings," and a "huge mess." Other than the violations, no evidence was submitted to support Petitioner's claim that Respondent failed to provide access to remove violations or regarding the conditions inside the apartment.

Respondent Robert Treanor is the rent-stabilized tenant of the subject apartment. He is 58 years old and has resided in the apartment for about fifteen years. Based on hospital medical records subpoenaed pursuant to CPLR 2306 and admitted into evidence pursuant to CPLR 4518(c), Respondent has been diagnosed with HIV, hepatitis B, paranoid schizophrenia, dementia, and neuropathy.

Respondent did not appear in court on the date of trial. He was reached by telephone for his direct examination, though he was not present by telephone for Petitioner's case-in-chief. Respondent testified that he has balance issues and falls a lot and is therefore "homebound." He has a home attendant for eight hours per day, seven days per week. Multiple cleaning crews had visited the apartment at various times to remove belongings, though no time periods for these cleanings were specified.

The court visited the apartment in March 2019, along with counsel for both parties and Petitioner's witness. Although it was obvious from what the court observed that Respondent does not favor a minimalist design aesthetic, there was no refuse or rubbish present in the apartment, access to the windows and other egress was not blocked, furniture was not stacked "floor to ceiling," there was not an "excessive storage of material," and the overall condition did not approach that which may be described as relating to condition of the apartment maintained by the famed Collyer brothers. Petitioner's witness acknowledged that the condition of the apartment on this occasion was "definitely less cluttered" than when he visited in the autumn of 2018.

"To constitute a nuisance the use of property must interfere with a person's interest in the use and enjoyment of land. The term 'use and enjoyment' encompasses the pleasure and comfort derived from the occupancy of land and the freedom from annoyance....Nuisance imports a continuous invasion of rights—'a pattern of continuity or recurrence of objectionable conduct'" (Domen Holdings Co. v Aranovich, 1 NY3d 117, 123-124 [2003] [internal citations omitted]). But a tenant may be causing a nuisance even if his neighbors are not aware that their use and enjoyment are being interfered with; the existence of violations in an apartment that have the potential to affect the health and safety of other building residents constitutes a nuisance (see Strata Realty Corp. v Pena, 166 AD3d 401 [1st Dept 2018] [tenants refusal to allow landlord to cure violations, including tenant's removal of smoke/carbon monoxide detectors and window guards, vermin infestation, and lead paint constituted a nuisance]). Where a tenant was alleged to have prevented the landlord from curing a rodent infestation in her apartment, the Appellate Division has rejected a tenant's argument that the landlord had failed to state a cause of action for nuisance because the conditions only affected her apartment, because the infestation "could spread to other parts of the building" (12 Broadway Realty LLC v Levites, 44 AD3d 371 [1st Dept 2007]; but cf. Roxborough Apts. Corp. v Kalish, 22 Misc 3d 130[A], 2009 NY Slip Op 50127[U] [App Term, 1st Dept 2009] [landlord failed to show that tenant's refusal to provide access to allow remediation of lead paint "in any way affected other building residents"]).

Most apposite here is Gazivoda v Sherman (18 Misc 3d 138[A], 2008 NY Slip Op 50312[U] [App Term, 1st Dept 2008]), wherein the Appellate Term affirmed the lower court's judgment for the landlord where the tenant had caused a nuisance by his "excessive accumulation of 'papers, debris, and refuse,' which had 'taken over all livable space'" in the apartment. Similarly, here HPD issued four Housing Maintenance Code violations over a three-year period. Three of those violations, including the most recently issued, specifically reference the existence of a fire hazard; two of the violations reference blockage of free passageway to the windows; and two also mention that the various accumulation of items reached up to the ceiling. Although one may argue that a single HPD violation is but a snapshot of a moment in time, the placement of four similar violations over a three-year period strongly suggests an ongoing condition. The existence of conditions in Respondent's apartment over a three-year period that HPD describes as a "fire hazard" puts Respondent and his neighbors at risk of serious injury or death and is therefore a nuisance, entitling Petitioner to a final judgment of possession.

Respondent argues that he should be entitled to relief pertaining to a cure, whether arising out of New York common law or as a reasonable accommodation required by the Fair Housing Act. Although Respondent's conduct to cure the conditions described in the HPD violations would seem to have occurred after service of the notice of termination, "remedial action" taken after service of the notice of termination is not "irrelevant" to whether a tenant should be afforded an opportunity to cure (Gazivoda v Sherman, 29 AD3d 458, 459 [1st Dept 2006]). The Appellate Division recently extended an opportunity to cure considering the tenant's disability, long-term and rent-stabilized tenancy, and the hardship that would result if such a cure were not offered, and where the tenant stated willingness to comply with a court order and provide access to the landlord (Strata Realty Corp., 166 AD3d at 402). Nonetheless, an opportunity to cure may not be warranted where those factors are not present and where the tenant has already had ample opportunity to cure the condition and has resisted doing so (Gazivoda, 2008 NY Slip Op 50312[U], *1).

At least as of the date the court inspected the apartment, shortly before trial, Respondent [*3]had cured the conditions described in the HPD violations. Respondent's testimony regarding his efforts to cure was vague, but Petitioner's evidence regarding the conditions after termination of the tenancy was sparse, limited to the witness's brief comments regarding his observations from the Autumn of 2018. Also, because of Respondent's age and disabilities, the court cannot conclude that his failure to cure earlier was the result of obstinacy or other resistance to changing the conditions in the apartment or his behavior in engendering those conditions. The foregoing, as well as Respondent's age, disability, and long-term rent-stabilized tenancy merit in favor of granting Respondent relief based on the court's finding that he has already effectuated a cure. The court does not reach whether Respondent is entitled to a cure as a reasonable accommodation pursuant to the FHA but notes that evidence of a causal link between the Respondent's disabilities and the nuisance condition was limited.

Accordingly, it is hereby

ORDERED that a final judgment of possession shall be entered in favor of Petitioner; and

ORDERED that issuance of the warrant of eviction is permanently stayed.