Appellate Term, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on December 30, 2010
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ
Tenants, as limited by their briefs, appeal from (1) a final judgment of the Civil Court of the City of New York, New York County (Michelle D. Schreiber, J.), entered December 16, 2009, after a non-jury trial, awarding possession to landlord, and (2) an order (same court and Judge), dated January 22, 2010, which denied their post-trial motion seeking various forms of relief.
Final judgment (Michelle D. Schreiber, J.), entered December 16, 2009, modified to the extent of permanently staying execution of the warrant of eviction on condition that tenants comply with the leashing requirements of their lease; as modified, judgment affirmed, without costs. Order (same court and Judge), dated January 22, 2010, affirmed, without costs.
We reject tenants' contention that the trial court's determination that tenants breached a substantial obligation of the subject lease agreement was against the weight of the evidence. No basis exists to disturb that fact-laden determination, which was based in large measure on the court's conclusions regarding the credibility of the witnesses. Similarly, we reject tenants' argument that the breach was de minimus.
However, based upon the particular facts of this case, we conclude that the potential cure the trial court afforded tenants -- removal of the subject pets (two dogs) -- was inappropriate. The court expressly found that the pets, which have been registered and certified as service dogs for tenants by the New York City Department of Health and Mental Hygiene, did not create a nuisance condition. Rather, the court determined that tenants violated a substantial obligation of the lease by failing to comply with certain leashing requirements imposed by the lease. In light of the purpose of the post-judgment cure -- to avoid the needless and unwarranted forfeiture of a dwelling (Jillandrea Realty Assoc. v Johnson, 118 Misc 2d 520, 522 ) -- and the principle that the statute affording tenants the post-judgment cure, RPAPL § 753(4), must be "liberally construed to spread its beneficial effects as widely as possible" (Post v 120 East End Ave. Corp., 62 NY2d 19, 24 ), the appropriate cure was to require tenants to comply with the leashing requirements during the relevant period (see RPAPL § 753) and to permanently stay execution of the warrant of eviction on condition that tenants continue to comply with the leashing requirements (see generally Ansonia Assoc. v Bozza, 180 Misc 2d 702 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 30, 2010
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