Opinion
L & T 62888/15
12-10-2015
RSP UAP-2 Property LLC, Petitioner-Landlord v. Albert Zarka, Respondent-Tenant "JOHN DOE" and "JANE DOE" Respondents-Undertenants
BELKIN BURDEN WENIG & GOLDMAN, LLP Attorneys for Petitioner By: Matthew S. Brett, Esq. & William E. Baney, Esq 270 Madison Avenue New York, New York 10016 ALBERT ZARKA Respondent Pro Se
BELKIN BURDEN WENIG & GOLDMAN, LLP Attorneys for Petitioner By: Matthew S. Brett, Esq. & William E. Baney, Esq 270 Madison Avenue New York, New York 10016 ALBERT ZARKA Respondent Pro Se Sabrina B. Kraus, J.
This holdover proceeding was commenced by RSP UAP-2 PROPERTY LLC (Petitioner) seeking to recover possession of 300 EAST 40th Street, Apt. 11W, New York, New York 10016 (Subject Premises) based on the allegation that ALBERT ZARKA(Respondent) the rent-stabilized tenant of record has created a nuisance in the Subject Premises in violation of Section 2524.3(b) of the Rent Stabilization Code.
PROCEDURAL HISTORY
Petitioner issued a notice of termination dated May 25, 2015, terminating Respondent's tenancy. The notice asserted that Respondent was creating a nuisance at the Subject Premises, and substantially interfering with the comfort and safety of Petitioner, its employees and other tenants and occupants of the Subject Building.
The Notice asserted that Respondent had made alterations to the Subject Premises without Petitioner's written consent and that the alterations had created a dangerous condition. The Notice further asserted that Respondent had failed to take good care of the Subject Premises, and that Respondent had created dangerous conditions.
The Notice further asserted: that Respondent had repeatedly denied or delayed access to the Subject Premises for repairs; and that Respondent maintained the Subject Premises in an offensive, objectionable and foul manner, by unlawfully harboring four pigeons in the Subject Premises; and that Respondent had violated his lease by failing to provide the Super of the building with a key to the Subject Premises.
The Notice referenced a prior holdover from 2011 that involved the issue of Respondent feeding pigeons, that pigeons have been observed living in the Subject Premises, and that the Super had observed four uncaged pigeons in the Subject Premises on four dates in February and March 2015.
The Notice further asserted that: Respondent had repeatedly denied or delayed access for routine pest control which cause inconvenience and damage; that neighbors have complained about vermin emanating from the Subject Premises in April 2013; and that cockroaches were observed in the Subject Premises in February 2015.
The Notice further asserted that there was a leak in the Subject Premises in February 2015 from Respondent's HVAC unit that caused extensive damage to the apartment below, and that Respondent insisted on 48 hours notice prior to giving access to address the leak and then refused to allow Petitioner to take steps for mold remediation. The Notice further asserts that Respondent has refused to permit annual inspections of the HVAC unit, which may have prevented the leak.
The Notice further asserted that Respondent altered the plumbing of a sink without the assistance of a plumber, and that said alteration necessitated repairs which Respondent only gave access for four hours, although Petitioner sought access for six to eight hours, and thus Petitioner had to hire three plumbers at once to get the job done.
The Notice further asserted that Respondent routinely leaves his oven door open to warm up the Subject Premises.
The Notice further asserts that Respondent maintains the Subject Premises in a poor and unhygienic condition, that it is untidy and dirty and filled with vermin, and that there is a layer of filth on the stove and the counters in the kitchen, and that this has greatly interfered with the comfort and safety of Petitioner, building personnel and occupants of the building. Finally, the Notice asserts that the conditions in the Subject Premises are violations of the New York City Health Code and other applicable provisions of law, and that said conditions have placed other occupants in the building in danger of roach and vermin infestation. The petition is dated April 23, 2015, and the proceeding was initially returnable May 6, 2015, when Respondent appeared by counsel. The proceeding was adjourned to July 8, 2015, pursuant to a stipulation, wherein the parties agreed to exchange photographs of the Subject Premises.
On August 17, 2015, counsel for Respondent moved for permission to withdraw. The motion was granted by the court (Wendt, J) and without opposition on said date. Notwithstanding said order, counsel for Respondent filed an answer dated September 16, 2015, asserting defenses including: that the pleadings are defective; that the Notice impermissibly simultaneously asserts breach of lease claims, nuisance claims, and illegal alterations claims rendering it fatally defective; that Petitioner is harassing Respondent; lack of personal jurisdiction and a claim for attorneys' fees.
On October 22, 2015, the proceeding was transferred to the Expediter's Part for assignment to a trial judge. On November 10, 2015, the proceeding was assigned to Part R for trial. The trial took place and the proceeding was adjourned to November 24, 2015, for the submission of post trial memoranda. On November 24, 2015, Petitioner submitted a post trial memo and the court reserved decision.
PRIOR RELATED PROCEEDING
The Court takes judicial notice of a prior holdover proceeding between the parties under Index Number 72677/2011. The court has requisitioned the file from said proceeding, and considers the contents of said file to be part of the record in the underlying proceeding. Petitioner issued a seven day notice of termination dated June 3, 2011, alleging that Respondent had created a nuisance in the Subject Premises by feeding birds from the windows, resulting in bird feces being smeared all over the adjacent apartments windows, substantially interfering with the occupancy of building tenants and employees.
Respondent was represented by counsel in said proceeding and the parties entered into a stipulation of settlement dated January 30, 2012, which provided that Respondent agreed not to feed any wild birds from the Subject Premises and that in the event of a default prior to March 30, 2013, Petitioner could restore the proceeding for a judgment of possession. No default was ever asserted in said proceeding. FINDINGS OF FACT
Petitioner is the proprietary lessee and shareholder of the Subject Premises pursuant to a proprietary lease dated November 15, 2012 (Ex 2) and a stock certificate issued on the same date (Ex 1). There is a valid MDR for the building through August 2016 (Ex 6). Respondent is the rent stabilized tenant of the Subject Premises pursuant to a written lease agreement dated December 13, 1977 (Ex 3), most recently renewed on September 25, 2014 for a one year term running through December 31, 2015 (Ex 4).
The legal registered rent for the Subject Premises is $1177.02 (Ex 5). Jorge Cartegna (JC) was the first witness called by Petitioner. JC is employed by the coop board of the subject building as a Super. JC has been the Super for the building for a total of 33 years, with the last 21 years being consecutive and a 12 year stint prior to that. JC lives in apartment 3D in the subject building. The subject building is a coop with 365 units on 21 floors. JC supervises a staff of eleven employees at the building, and is in charge of maintenance for A/C units, heating, and the boiler, as well as addressing requests for repairs.
Generally when JC receives a request for a repair he will either address it himself or give it to a handyman to address. JC knows most of the tenants in the building, including Respondent. JC has known Respondent for over thirty years.
JC has been inside the Subject Premises on approximately 12 occasions. JC was in the Subject Premises on February 17, 2015. On that date around noon time, JC received a phone call regarding water collecting in the hallway. JC went up with a handyman to investigate and saw water coming into the hallway from under the door of the Subject Premises. Two photographs depicting the water in the hallway were admitted into evidence (Ex 7).
JC tried calling the Respondent on his cell phone but received no answer. JC broke the lock to the Subject Premises and entered the Subject Premises. Once JC got inside the Subject Premises he observed a lot of vapor clouding the air and opened a window to let out the vapor. JC observed that water was gushing out of the A/C unit. A picture of the inside of the Subject Premises on that day was entered into evidence and shows water collected in the hallway (Ex 8). JC shut off the water, cleared out the rugs and dried the floor of the Subject Premises as much as possible. JC does not know why water was coming out of the A/C unit and concluded that a pipe just burst.
While JC was inside the Subject Premises he saw a total of four pigeons that were roaming free in the Subject Premises. A picture of two of the birds on top of a book case was admitted into evidence (Ex 9A). JC testified that the Subject Premises was not clean. JC observed bird feces on the floor of the Subject Premises, and by the A/C unit. Throughout the Subject Premises, JC observed food for the birds on the floor as well as a bowl with water and bird food in the kitchen. A picture showing a few scattered bird seeds on the floor of a room in the Subject Premises was entered into evidence (Ex 9E).
JC has not observed any birds in the Subject Premises since February 17, 2015.
JC observed a few roaches in the kitchen sink (Ex 9F) in the Subject Premises on February 17, 2015. JC testified that as of the date of the trial there was no heat in the Subject Premises. A new unit to provide heat has been delivered to the Subject Premises, but JC testified that Respondent would not give him permission to connect the unit. JC testified that the bathroom has a "make-shift" drain on the basin of the sink that consists of a piece of hose that goes from the sink to the wall. The condition is depicted in a photograph submitted into evidence (Ex 9F). JC was aware of this condition prior to February 2015. JC had been in the Subject Premises to fix a leak from the tub in late 2014, and saw this condition which he believed needed to be repaired. JC testified that management was willing to fix the condition, but it was never addressed because it is difficult for management to communicate with Respondent.
Respondent arrived at the Subject Premises later in the day on February 17, 2015. Petitioner removed the rugs from the Subject Premises to be dried and arranged to have a company come in to dry out the flood damage. The water went into two apartments adjacent to the Subject Premises. JC told Respondent the equipment to dry out the Subject Premises needed to be in place for a period of five days.
Petitioner put a new lock on the door to the Subject Premises and made several copies of the key. Two keys for the new lock were left for Respondent with the doorman. JC went into the Subject Premises several times after the leak, with a company that does water remediation to check the humidity of the floor and take readings. JC advised Respondent that he believed after the floor had been dried it needed to be replaced. Respondent declined the offer of replacing the floor. Both of the two apartments adjacent to the Subject Premises had mold remediation done. JC testified that neither of the apartments adjacent to the Subject Premises, apartments 11X and 11V, had ever had a problem with bugs. Extermination services are provided to the tenants who sign up for it every Friday. JC testified that Respondent does not sign up for extermination services and prefers to handle any bug issues himself.
The second witness called by Petitioner was Erminela Beqiri (EB). EB has been employed by Petitioner as an asset manager since January 2015. EB manages units owned by Petitioner in various coop and condominium buildings. Prior to January 2015, EB was a property manager for Akam Associates.
EB had never met Respondent prior to the trial, but had communicated with Respondent by email. EB wrote a letter to Respondent dated February 19, 2015 (Ex 11) demanding access the following day for mold remediation and stating that if access was not provided Petitioner would commence an action in Supreme Court. The letter also suggested additional access might be necessary for Petitioner's insurance adjusters.
Respondent replied in writing the same day. Respondent stated he did not feel mold remdiation was necessary, but would nevertheless agree to provide access on 48 hours notice (Ex 12). EB responded in writing on February 20 in the late afternoon and asked for access on February 23 from 9 am to noon, to which Respondent agreed (Ex 12).
Access was provided by Respondent on February 23, 2015 and fans and a dehumidifier were put into place in the Subject Premises. Petitioner's workers did not arrive until just before noon and kept Respondent waiting for three hours.
Additional access was requested from Respondent for the insurance adjuster on February 24, 2015 and Respondent agreed to same (Ex 12).
On February 24, 2015, EB wrote to Respondent to request access to repair the bathroom sink. On February 25, 2015, EB requested that the plumber be given access on March 4, 2015 at 11 am. Respondent agreed and said any day that week at 11 am would be fine (Ex B). It was further agreed that the repair to the A/C unit would take place at the same time. On March 5, 2015, in the evening, EB wrote to ask Respondent to provide access on March 8, 2015, from 9am to 5 pm for the sink repair. Respondent stated he could provide access for four hours at a time from 10 to 2pm on any days that suited Petitioner. The parties agreed on March 18th from 10 am to 2 pm. Respondent granted access on said date and on March 19, 2015, EB requested additional access on the following day from 11 am to 1 pm for the building's exterminator, to which Respondent also agreed (Ex B). Respondent agreed to additional access on March 27th at noon for inspection of his HVAC unit and CO/smoke detectors. Petitioner called Respondent as its third witness. Respondent testified that he like to care for animals in general, and that he rescues pigeons from the street and brings them to the Subject Premises. Respondent testified that he has always done this. The pigeons Respondent brings into the Subject Premises are either injured, sick or tired. Usually they can not fly. If needed, Respondent brings the pigeons to a vet for treatment. The last date Respondent had cared for a pigeon in the Subject Premises was approximately three months prior to the trial. Respondent takes the birds to the Wild Bird Fund located on 88th Street and Columbus Avenue, where the birds receive care.
Respondent has a cage for the birds in the Subject Premises, but does not use the cage on a regular basis, and often allows the birds to roam free in the Subject Premises. Usually Respondent only has one pigeon at a time in the Subject Premises. Respondent acknowledged that on February 17, 2015, there were four pigeons in the Subject Premises. On February 18, 2015, Respondent released two out of the four pigeons. The remaining two were still injured and unable to fly. Respondent took them to a rehabilitation facility for pigeons.
Respondent works as a translator for the United Nations and is fluent in eight languages. Respondent acknowledged that he is sometimes reluctant to allow Petitioner into the Subject Premises, because Petitioner uses such occasions to obtain information to bring eviction proceedings against him. The court found Respondent to be a credible witness. After Respondent's testimony, Petitioner rested. Respondent called Rosanna Chu (Chu) as a witness. Chu testified that she has been in the Subject Premises and found the apartment was clean. The last time Chu was in the Subject Premises was in the spring of 2015. Respondent and Chu work together at the United Nations. Chu has been to the Subject Premises on five occasions since 2011. Chu was never in the Subject Premises for more than 20 minutes.
DISCUSSION
Petitioner maintains this proceeding pursuant to §2524.3(b) of the Rent Stabilization Code. That section permits an eviction where:
The tenant is committing or permitting a nuisance in such housing accommodation or the building containing such housing accommodation, or is maliciously, or by reason of gross negligence, substantially damaging the housing accommodation; or the tenant engages in a persistent and continuing course of conduct evidencing an unwarrantable, unreasonable or unlawful use of the property to the annoyance, inconvenience, discomfort or damage of others, the primary purpose of which is intended to harass the owner or other tenants or occupants of the same or an adjacent building or structure by interfering substantially with their comfort or safety. The lawful exercise by a tenant of any rights pursuant to any law or regulation relating to occupancy of a housing accommodation, including the RSL or this Code, shall not be deemed an act of harassment or other ground for eviction pursuant to this subdivision (b);
The gap between the allegations in the predicate notice and the proof presented by Petitioner at trial is substantial. Petitioner failed to establish by a preponderance of evidence at trial that Respondent's conduct constitutes a nuisance.
Petitioner failed to prove that Respondent made any alteration to the Subject Premises, let alone an alteration that created a dangerous condition. While there was testimony regarding a condition under the sink, there was no evidence as to how or when that condition arose, and no evidence that it was an alteration done by Respondent.
There was no evidence that any other tenant or resident in the Subject Building has been disturbed by Respondent's conduct. While there was a leak from the Subject Premises that damaged neighboring units, there was no evidence that the leak was caused by any negligence on the part of Respondent, and this was only a single incident.
There was no evidence that Respondent refused to provide Petitioner with a key to the Subject Premises. In fact Petitioner changed the lock to the Subject Premises on February 17, 2015, and made multiple copies of the keys.
There was no evidence of Respondent repeatedly denying access to Petitioner, and certainly not to a level that would constitute a nuisance. In fact, the evidence shows that Respondent was cooperative in providing Petitioner with access on multiple occasions with little advance notice, even when he didn't agree that access was required.
The Notice references requests for access in the spring of 2013 for extermination. No evidence of these allegations was offered at trial. While Petitioner did establish that on a single date in February there were three small roaches in the kitchen there was no evidence of a insect infestation requiring treatment. In fact, Petitioner's own witness testified there was no problem with insects in any of the units adjacent to the Subject Premises. Certainly Petitioner failed to offer any evidence that the condition of the Subject Premises has placed other occupants in the building in danger of roach and vermin infestation.
While Respondent declined to have his floor replaced, after the leak, there was no evidence presented by Petitioner that such work was necessary. No expert or other professional gave any testimony in this regard.
There was no evidence that Respondent has refused to permit annual inspections of the HVAC unit. In fact the only evidence offered on this point established that Respondent provided access for said inspections when requested to do so.
There was no evidence that Respondent uses the oven to heat the Subject Premises. Petitioner failed to establish by a preponderance of credible evidence that Respondent maintains the apartment in a poor and unhygienic condition. The photographs in evidence do not support such a conclusion and the single statement by JC that on February 17, 2015 the apartment was not clean is insufficient to support a claim for nuisance based on this allegation, and is rebutted by the credible testimony of Chu.
There was no evidence of any unsanitary repulsive conduct that greatly interfered with the comfort and safety of anyone in the building. Particularly lacking in Petitioner's case was the testimony of any other occupants or residents that Respondent's conduct had any impact on them.
There was no evidence of any condition in the Subject Premises that constituted a violation of the New York City Health Code.
In its post trial memo, Petitioner argues that Respondent's keeping pigeons in the Subject Premises is a violation of Multiple Dwelling Law § 12, and thus constitutes nuisance per se. MDL § 12(2) provides that "(i)t shall be unlawful to keep any horse, cow, calf, swine, rabbit, sheep, goat, chicken or duck, or any pigeon except Antwerp or homing pigeons, in or on any multiple dwelling or on the lot or premises thereof unless permitted by and in accordance with local law or regulation." Petitioner's pleadings did not cite a violation of this law as the basis of the proceeding. Petitioner did not provide any evidence at trial as to whether the birds observed on February 17, 2015, were Antwerp pigeons, homing pigeons or some other type of pigeon.
The claim that keeping pigeons in the Subject Premises constitutes a nuisance per se is not supported by applicable case law. In Midtown Properties LLC v Kline 34 HCR 380(A)(nor) the landlord brought a holdover alleging that the tenants kept pigeons in their apartment and that this constituted a breach of their lease and a nuisance. Landlord had known for years that the tenants had the pigeons, but alleged that they had not waived the right to proceed because the pigeons were prohibited by MDL §12 and waiver therefore did not apply. The tenants moved for summary judgment, in part, based on the affidavit of an expert who asserted that there is no biological difference between Antwerp pigeons and other breeds. Based on said uncontested assertion, the court found that Petitioner had waived their right to proceed on the breach of lease claim, thereby implicitly rejecting the applicability of MDL §12, and the court further held that "the mere harboring of pigeons is not sufficient to set forth a claim of nuisance" citing One More Time v Ahuatl NYLJ, Aug. 13, 2003 (dismissing a nuisance claim based on the allegation that the mere harboring of a pit bull constitutes a nuisance).
Petitioner cited 508 Columbus Properties v Beasley (NYLJ, 3/24/10, pg. 26, col. 3) for the proposition that Petitioner need not provide evidence that other residents and occupants were disturbed by the conduct of a tenant in a nuisance holdover proceeding. However, in Beasley the landlord offered the testimony of expert witnesses which established violations of law that put the tenants at risk. The court in Beasley held:
Petitioner's theory in this case is that respondent is engaged in a continuing course of conduct over four decades in which he repeatedly performed work in his apartment ... without the permits and licensed workers requited by law, and in violation of various building code provisions. Petitioner claims that the repeated violation of building code provisions over the course of years, in and of itself, constitutes a nuisance because the code provisions are intended to protect building residents and their violation, per se, threatens the safety of building residents.
The court further held that "Petitioner's expert witnesses established that there were building, electrical and plumbing code violations in the apartment that posed ongoing safety hazards. .... Here, petitioners experts testified that there were conditions constituting substantive violations of code provisions in the apartment, even at the time of trial."
In the case at bar, Petitioner provided no such evidence. While Respondent acknowledged that he has always brought pigeons into the Subject Premises, Petitioner only provided evidence of the condition of the Subject Premises on a single date as pertains to the birds. Petitioner did not provide any expert testimony establishing any violations of law, and there was no evidence any violations were issued. Even as to Petitioner's request for access to replace the floor after the flood, Petitioner provided no expert testimony establishing that there was a condition in the Subject Premises that necessitated such work, or the consequences of not doing such work.
Similarly misplaced is Petitioner's reliance on Monterey Apartments, Inc. v Burt (183 Misc 1060) a 1944 case where the Appellate Term held it was reversible error to dismiss the proceeding at the close of the landlord's case because the landlord had submitted into evidence proof that HPD had issued a violation pursuant to MDL § 309, which at that time provided "(w)henever any multiple dwelling ... is in the opinion of the department charged with the enforcement of this chapter in a condition or in effect dangerous to life or health, the said department may declare the same ... is a public nuisance, and may order the same to be removed, abated, suspended, altered or otherwise improved or purified as the order shall specify." Thus in Burt, the landlord submitted a violation showing that HPD had already determined that there was a danger to the health and safety of the individuals constituting a public nuisance. In this case there was no such violation, and insufficient evidence at trial for the court to determine that such a violation exists. Burt more likely had to do with the feeding of pigeons and the problems associated with same, which have sometimes been held to constitute a nuisance, but which is not alleged in the case at bar (see eg Joyce Properties Inc v Rubi 52 Misc 2d 825 feeding a great number of pigeons four to five times per day and harboring some in the apartment constituted a private nuisance allowing the landlord to move for the rent control tenant's eviction). However, even in cases like Rubi, the court's determination was based on a record which included both expert testimony and the testimony of other residents in the building, both of which were absent at the trial in this proceeding.
A nuisance,' for purposes of the Rent Stabilization Code, is a condition that threatens the comfort and safety of others in the building' ... A nuisance must interfere with a person's interest in the use and enjoyment of land,' including the pleasure and comfort derived from the occupancy of the land and the freedom from annoyance' ...Chi-Am Realty Inc. v Guddahl 7 Misc 3d 54, 55 (citations omitted) affd 33 AD3d 911.
Petitioner failed to establish a nuisance by a preponderance of credible evidence in this proceeding and as such the proceeding is dismissed. This constitutes the decision and order of this Court. Dated: New York, New York December 10, 2015 ____________________ Sabrina B. Kraus, JHC
The parties may pick up their exhibits from Window 9 in the clerk's office on the second floor of the courthouse within thirty days of the date of this decision. After said date the exhibits may be destroyed in accordance with administrative directives.