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London Terrace Associates C/O Keystone Realty Associates v. Deborah A. Perykaz

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS


December 5, 2011

LONDON TERRACE ASSOCIATES C/O KEYSTONE REALTY ASSOCIATES,
RESPONDENT, --
v.
DEBORAH A. PERYKAZ,
APPELLANT -AND-
ALL OTHERS, JOHN DOE AND/OR JANE DOE,
UNDERTENANTS.

Appeal from a decision of the Justice Court of the Town of Ossining, Westchester County (Nancy Quinn Koba, J.), dated November 23, 2009, deemed from a final judgment of the same court entered January 8, 2010 (CPLR 5512 [a]).

London Terrace Assoc. v Perykaz

Decided on December 5, 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This opinion is uncorrected and will not be published in the printed Official Reports.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: NICOLAI, P.J., LaCAVA and IANNACCI, JJ

The final judgment, after a non-jury trial, awarded landlord possession and, among other things, attorney's fees of $4,008.25 in a holdover summary proceeding.

ORDERED that the final judgment is affirmed, without costs.

In this holdover proceeding, landlord established, based on the credible evidence, that tenant had violated her lease by engaging in objectionable conduct in that she had failed to allow access to her apartment for the treatment of a bedbug condition which was detrimental to the health and safety of the other tenants (see 12 Broadway Realty, LLC v Levites, 44 AD3d 372 [2007]; Clermont York Assoc. v Feher, 31 Misc 3d 10 [App Term, 1st Dept 2011]). Landlord further established that tenant had failed to meaningfully cure this breach within the cure period, in that, although she had then allowed access, she had failed to prepare the apartment so that the exterminators could do their work. The Justice Court also correctly rejected tenant's claim that the eviction violated Real Property Law § 223-b, as the proof showed that the proceeding was not brought in retaliation for tenant's complaints to governmental authorities, and as that statute expressly exempts proceedings based on a tenant's violation of the lease terms from the presumption of retaliation (Real Property Law § 223-b [5]). Accordingly, the final judgment is affirmed.

Nicolai, P.J., LaCava and Iannacci, JJ., concur. Decision Date: December 05, 2011

20111205

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