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Warren, LLC v. Christian Daza and Anna Daza

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


September 21, 2011

WARREN, LLC,
APPELLANT,
v.
CHRISTIAN DAZA AND ANNA DAZA, RESPONDENTS,
AND "JOHN DOE" AND/OR "JANE DOE",
UNDERTENANTS.

Appeal from a decision of the Civil Court of the City of New York, Queens County (Deighton S. Waithe, J.), dated November 12, 2009, deemed from a final judgment of the same court entered November 12, 2009 (see CPLR 5520 [c]).

Warren, LLC v Daza

Decided on September 21, 2011

Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: PESCE, P.J., WESTON and STEINHARDT, JJ

The final judgment, after a non-jury trial, dismissed the petition in a holdover summary proceeding.

ORDERED that the final judgment is affirmed, without costs.

Landlord commenced this nuisance holdover summary proceeding predicated upon tenants' unauthorized renovation of their bathroom. After a non-jury trial, the Civil Court found that landlord had failed to establish that tenants' renovation constituted a nuisance. We affirm.

To constitute a nuisance, a tenant's behavior must "interfere with a person's interest in the use and enjoyment of land," including "the pleasure and comfort derived from the occupancy of land and the freedom from annoyance"; however, not every annoyance will rise to the level of a nuisance (Domen Holding Co. v Aranovich, 1 NY3d 117, 123-124 [2003]). "Nuisance imports a continuous invasion of rights--a pattern of continuity or recurrence of objectionable conduct" (id. at 124 [internal quotation marks omitted]). Moreover, a nuisance is "a condition that threatens the comfort and safety of others in the building" (Frank v Park Summit Realty Corp., 175 AD2d 33, 35 [1991], mod on other grounds 79 NY2d 789 [1991]). Although landlord maintained that the possibility that tenants would run the water while the bathroom was untiled could have "threaten[ed]" the comfort and safety of the others in the building by causing catastrophic flooding, it was conceded there was no actual flooding, and the unrebutted testimony of landlord's own witness indicated that the work on the bathroom has since been completed. Thus, it cannot be said that tenants' unauthorized renovations actually interfered with anyone's use or enjoyment of the building. Moreover, landlord offered no proof that tenants had used unlicensed contractors, or failed to get any proper permits, or that the work was done in any improper or unsafe way.

Furthermore, even assuming that tenants' unauthorized renovation, while in progress, could have been considered a nuisance, the proof at trial indicated that the nuisance has been cured (see e.g. Dov Glick, Inc. v Cuevas, 17 Misc 3d 137[A], 2007 NY Slip Op 52332[U] [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the final judgment is affirmed.

Pesce, P.J., Weston and Steinhardt, JJ., concur. Decision

Date: September 21, 2011

20110921

© 1992-2011 VersusLaw Inc.



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