Opinion
570781/11
01-12-2012
185 Duane LLC, Petitioner-Landlord-Appellant, v. Paul Gordon, Respondent-Tenant-Respondent.
PRESENT: , III, P.J., Schoenfeld, Hunter, Jr., JJ
Landlord appeals from an order of the Civil Court of the City of New York, New York County (Arlene H. Hahn, J.), entered on or about June 10, 2011, after a hearing, which denied landlord's motion to vacate a stay of execution of the warrant of eviction in a holdover summary proceeding.
Per Curiam.
Order (Arlene H. Hahn, J.), entered on or about June 10, 2011, reversed, with $10 costs, and matter remanded for a new compliance hearing.
The evidence presented by landlord at the compliance hearing, accorded the benefit of every favorable inference (see Peck v Wolf, 157 AD2d 535, 536 [1990], lv denied 75 NY2d 709 [1990]), was sufficient to establish prima facie that tenant and/or his adult son violated the terms of the second of two stipulations entered into by the parties in settlement of the underlying nuisance holdover proceeding. There is proof in the record that, during the stipulation's probationary period, a neighboring tenant who lives in the third-floor unit directly above tenant's second-floor apartment, was subjected to two "loud" arguments between tenant's son and an unidentified woman — one such argument occurring in the middle of the night — and that on no fewer than four separate occasions the neighbor smelled the odor of marijuana "coming from below" or "concentrated in the second floor area," an area in which only one apartment, tenant's apartment, is situated. Under the liberal review standard applicable to this appeal, such evidence was legally sufficient to survive tenant's dismissal motion made at the close of landlord's case, and to establish prima facie a violation of the governing settlement stipulation, whose terms authorized execution of the warrant of eviction upon a showing that tenant or his son "committed at least one act which constitutes the smoking of marijuana or causes noise which interferes with the peaceful enjoyment of the other occupants of the building."
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur