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Clermont York Assoc v. Leslie Feher

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT


February 15, 2011

CLERMONT YORK ASSOC.,
PETITIONER-LANDLORD-RESPONDENT,
v.
LESLIE FEHER, RESPONDENT-TENANT-APPELLANT.

Per curiam.

Clermont York Assoc. v Feher

Decided on February 15, 2011

Appellate Term, First Department 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 printed Miscellaneous Reports. Decided on February 15, 2011

PRESENT: Shulman, J.P., Hunter, Jr., J.

Tenant appeals, as limited by her briefs, from 1) an order of the Civil Court, New York County (Gary F. Marton, J.), dated May 22, 2009, which, after a non-jury trial, granted landlord a possessory judgment, with execution of the warrant of eviction stayed through June 10, 2009 to allow tenant an opportunity to cure, 2) an order (same court and Judge), dated August 18, 2009, which, after a hearing, awarded landlord use and occupancy in the amount of $25,473.33 and $8,300 in attorney's fees, and 3) an order (same court and Judge), dated October 29, 2009, which, upon reargument and renewal, adhered to the aforesaid order of August 18, 2009.

Appeal from order (Gary F. Marton, J.), dated May 22, 2009, deemed an appeal from the ensuing final judgment (same court and Judge), entered on or about May 22, 2009, and so considered, final judgment affirmed, without costs. Order (same court and Judge), dated August 18, 2009, modified to vacate the award of use and occupancy, award use and occupancy to landlord in the amount of the rent reserved in tenant's most recent lease, plus and applicable rent guidelines increases through June 30, 2009, and remand the matter for calculation of the use and occupancy award and entry of an amended judgment, and, as modified, order affirmed, without costs. Appeal from order (same court and Judge), dated October 29, 2009, dismissed, without costs, as academic with respect to renewal and as taken from a non-appealable order with respect to reargument.

We sustain the conditional judgment of possession awarded in favor of landlord on the holdover petition. A fair interpretation of the evidence, including the parties' correspondence and the credited testimony of landlord's witnesses, supports the trial court's finding that tenant violated paragraph 17 of her lease by obstructing the landlord's repair efforts in unreasonably denying access to the stabilized apartment premises. Tenant's jurisdictional point, as well as her claims of error relating to the conduct of the trial and the dismissal of her counterclaims, are lacking in merit.

Tenant correctly argues, however, that landlord was not entitled to a recovery of fair market use and occupancy, since the lease violation established at trial, subject to tenant's right to cure pursuant to RPAPL 753(4), did not remove the unit from the ambit of rent stabilization (see 6 Greene St. Assoc. LLC v Robbins, 256 AD2d 169 (1998); Ansonia Assoc. v Bozza, 186 Misc 2d 845 [2000]). That tenant ultimately eschewed the opportunity to cure, and instead chose to vacate the apartment -- "voluntarily," as landlord acknowledges -- did not serve to alter her status as "a lawful tenant of a rent-stabilized apartment" during the holdover period (see and compare Weiden v 926 Park Ave. Corp., 154 AD2d 308 [1989]). In this posture, the award of use and occupancy is more properly limited to the regulated rent plus any applicable guidelines increases.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: February 15, 2011

20110215

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