New York SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
December 18, 2012
MAUTNER-GLICK CORPORATION AND GERALD P. HALPERN AS EXECUTOR OF THE ESTATE OF FRED ZIESS, RESPONDENTS,
MARK TUNNE, APPELLANT.
Appeals from an order of the Civil Court of the City of New York, New York County, entered December 4, 2006 (Peter M. Wendt, J.), a final judgment of the same court (Brenda Spears, J.) entered October 19, 2009, and an oral order of the same court (Brenda Spears, J.) made on October 26, 2009.
Mautner-Glick Corp. v Tunne
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This opinion is uncorrected and will not be published in the printed Official Reports.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 RIOS, JJ.
The order entered December 4, 2006 denied tenant's motion to vacate a stipulation in a holdover summary proceeding. The final judgment awarded possession to landlords. The oral order made on October 26, 2009 declined to entertain tenant's application for "renewal and reargument" of the final judgment. The appeals were transferred to this court by decision and order of the Appellate Division, Second Department, dated December 3, 2010.
ORDERED that the appeal from the order entered December 4, 2006 is dismissed as moot; and it is further,
ORDERED that the final judgment is affirmed, without costs; and it is further,
ORDERED that the appeal from the October 26, 2009 oral order is dismissed on the ground that no appeal lies as of right from an order that is not the result of a motion made on notice (see CCA 1702 [a] ; CPLR 2211) and leave to appeal has not been granted.
Landlords commenced this holdover summary proceeding in 2006 following their termination of tenant's lease based upon his "failure to pay [his] rent in a timely fashion for a period of several years" and because tenant had "engaged in objectionable conduct sufficiently egregious to warrant termination of [his] tenancy." After the parties had entered into a stipulation of settlement, tenant immediately moved to vacate it. The Civil Court denied tenant's motion by order entered December 4, 2006. As the stipulation was subsequently vacated on consent, tenant's appeal from the December 4, 2006 order is moot, and, accordingly, is dismissed.
A lengthy trial was held, after which a final judgment of possession was entered in favor of landlords. The Civil Court held that landlords had "established that [tenant] has breached his rent stabilized lease by behaving in a manner over several years that constituted a nuisance and by chronically failing to pay his rent when due." On the return date of an order to show cause brought by tenant in which he sought to stay the execution of the final judgment, tenant also sought to submit a "brief" in which he apparently purported to seek leave to "renew and reargue" the final judgment. The Civil Court refused to accept the "brief" and declined to entertain the application for leave to "renew and reargue." Tenant's appeal from the oral order declining to consider his application is dismissed on the ground, among others, that the order is not appealable as of right as it did not determine a motion made on notice (see CCA 1702 [a] ; CPLR 2211) and leave to appeal has not been granted. (It is noted that the Civil Court conditionally granted tenant's motion for a stay, and that no appeal was taken from that order.)
We turn, then, to the Civil Court's finding that tenant's behavior constituted a nuisance. "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 ). If a landlord demonstrates a continuous invasion of rights, or a recurrence of objectionable conduct, it will have made out a nuisance cause of action (see Chelsea 18 Partners, LP v Sheck Yee Mak, 90 AD3d 38 ; Frank, 175 AD2d 33; Pefko Realty, LLC v Nissim, 34 Misc 3d 129 [A], 2011 NY Slip Op 52304[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Here, the Civil Court found, based on the testimony adduced, that landlords had established a recurrence of objectionable conduct. The decision of a fact-finding court should not be disturbed upon appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence (see Claridge Gardens v Menotti, 160 AD2d 544 ). Furthermore, the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Vizzari v State of New York, 184 AD2d 564 ; Kincade v Kincade, 178 AD2d 510, 511 ). Given the testimony proffered by landlords' witnesses regarding tenant's abusiveness toward the superintendent's wife and the management company's staff, the Civil Court's determination with regard to the nuisance allegations is amply supported by the record.
Contrary to tenant's contention, the Civil Court did not err in not allowing tenant to recall the superintendent's wife, one of landlords' witnesses. The witness had testified, on August 13, 2008, that she had moved out of the subject building as a result of tenant's behavior. Tenant's attorney sought, on cross-examination, to impeach that statement, but claimed that the necessary trial transcript was not available in court. Three months later, when tenant's attorney sought to recall the witness for further cross-examination, she was not in court, nor had counsel subpoenaed her. The decision whether to allow a party to recall a witness is discretionary (see Feldsberg v Nitschke, 49 NY2d 636, 643-644 ), and tenant has not provided any reason as to why his attorney was not prepared with the trial transcript during the witness's cross-examination. There was no indication that the witness's testimony on direct examination was a surprise. Furthermore, it is within the discretion of the trial court to preclude a party from calling a witness where the party did not exercise due diligence in securing the witness's testimony (see Paek v City of New York, 28 AD3d 207, 208 ).
To the extent tenant may be arguing on appeal that he was entitled to a notice to cure, it is clear that the Rent Stabilization Code does not require the service of a notice to cure where the ground for termination is nuisance (see Rent Stabilization Code [9 NYCRR] § 2524.3 [b]).
In light of the foregoing, we need not review the Civil Court's finding that tenant breached the lease by chronically failing to pay his rent when due, and, as tenant's remaining contentions regarding, for example, acceptance of rent and retaliatory eviction, lack merit, the final judgment of possession is affirmed.
Pesce, P.J., Weston and Rios, JJ., concur. Decision Date: December 18, 2012
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