Opinion
2005-735 QC.
Decided February 14, 2006.
Appeal from a final judgment of the Civil Court of the City of New York, Queens County (Ulysses B. Leverett, J.), entered January 24, 2003. The final judgment, after a nonjury trial, dismissed the holdover summary proceeding.
Final judgment affirmed without costs.
PRESENT: PESCE, P.J., GOLIA and BELEN, JJ
The court's determination to dismiss the nuisance holdover proceeding rested largely upon its evaluation of the credibility of the witnesses for both sides, and that determination should not be disturbed where, as here, it is supported by a fair interpretation of the evidence ( see Protano v. 16 N. Chatsworth Ave. Corp., 272 AD2d 597; D.U. 3rd Realty Co. v. Stokes, 7 Misc 3d 126 [A], 2005 NY Slip Op 50428[U] [App Term, 2d 11th Jud Dists]). Landlord produced as witnesses at trial several tenants, whose testimony to the existence of an odor at the subject premises the court credited, along with letters to the same effect written by most of these witnesses. However, the letters were all written within a two-week period. Moreover, the instances of objectionable odor enumerated in the notice to cure, with one exception, are all clustered in the same two-week period as were the letters. Upon this record, the court was entitled to find that the conditions to which the witnesses testified did not rise to the level of a "pattern of continuity or recurrence of objectionable conduct" ( Frank v. Park Summit Realty Corp., 175 AD2d 33, 35, mod on other grounds 79 NY2d 789), and that landlord failed to establish that the sole source of the odor was tenants' apartment.
It is also notable that although common knowledge and experience dictate that a certain level of animal and/or other filth would have to be present in order to produce the overwhelming odor level complained of, no witness who had access to tenants' apartment, including the superintendent, who made repairs to the bathroom where the cats' litterbox was located, mentioned that any part of the apartment was filthy (as opposed to cluttered) or contained animal waste. Nor, in the course of five visits over two and a half years, had the superintendent ever mentioned to tenants that there was an odor or that others were complaining. The court was entitled to credit the testimony of tenants and their witnesses, as well as photographs submitted by tenants, to the effect that the apartment was reasonably clean and neat.
In light of this disposition, it is unnecessary to reach landlord's remaining contentions.
Pesce, P.J., Golia and Belen, JJ., concur.