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Cabrini Terrace Joint Venture v. O'Brien

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


March 11, 2010

CABRINI TERRACE JOINT VENTURE, PETITIONER-RESPONDENT,
v.
CHARLES O'BRIEN, RESPONDENT-APPELLANT.

Order of the Appellate Term of the Supreme Court, First Department, entered April 30, 2009, which affirmed a judgment, Civil Court, New York County (Gerald Lebovits, J.), entered on or about March 7, 2008, after a non-jury trial, awarding petitioner possession, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Mazzarelli, J.P., Saxe, Moskowitz, Acosta, Renwick, JJ.

570255/08

The trial court's findings, based largely on credibility, are not against the weight of the evidence (see Thoreson v Penthouse Intl., 80 NY22d 490, 495 [1992]). The conditions in tenant's apartment were properly found harmful to the health, safety and comfort of others based on testimony of roach and rodent infestation, clutter, offensive odors, and stacked newspapers and wiring in disarray, as well as of tenant's refusal of access (see 12 Broadway Realty, LLC v Levites, 44 AD3d 372 [2007]; Zipper v Haroldson Ct. Condominium, 39 AD3d 325 [2007], lv dismissed 9 NY3d 919 [2007]; Stratton Coop. v Fener, 211 AD2d 559 [1995]). A posttrial opportunity to cure was properly denied upon a finding, based on the testimony and the trial court's own inspection, that the nuisance conditions had existed over a substantial period, had not abated although tenant had been given ample opportunity to do so, and were unlikely to be abated (see Matter of Chi-Am Realty, LLC v Guddahl, 33 AD3d 911, 912 [2006], citing, inter alia, Stratton, 211 AD2d 559 [supra]; see also Zipper, 39 AD3d at 326). Tenant's contentions regarding the admissibility of evidence are unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100311

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