Opinion
L T 63546/09.
Decided August 25, 2010.
Karp Kalamotousakis, LLP, 370 7th Avenue, Suite 720, New York, NY 10001: Attorney: Jan Bent, Esq., for Petitioner.
The Bronx Defenders, 860 Courtlandt Avenue, Bronx, NY 10451: Attorney: Philippe Knab, Esq., for Respondent.
By Decision/Order dated April 29, 2010, the Court granted the petitioner's motion seeking to execute the warrant of eviction to the extent of setting the matter down for a hearing to determine whether there was a breach of the Stipulation of Settlement dated February 4, 2010 and whether, pursuant to the terms of the parties' agreement, the breach was material. In pertinent part, the respondent agreed that she would not permit Robert Petito to reside in the subject premises, nor permit him access to the grounds, the building, or the subject premises at any time during her tenancy at the subject premises. She also agreed to inform the petitioner of Robert Petito's presence at the premises if she saw or became aware of same. The petitioner called Byron Moore, the superintendent of the building, and Ben Fasten, an employee of the petitioner. The tenant of record testified.
Mr. Moore testified that he saw Robert Petito on March 16, 2010 and one other time in April, although he did not remember the date. He saw Robert Petito going into the driveway of the building and calling respondent through a window. On cross-examination, Mr. Moore testified that when he saw Robert Petito, he was speaking with the tenant of record and she brought him a plastic bag. He testified that they spoke for about 10-15 minutes. On re-direct examination, he testified that the other time he saw Robert Petito, he was standing outside of the building and helping the tenant of record remove paint from her window. He stayed for 10 to 15 minutes. Mr. Fasten testified that the tenant of record did not notify the landlord of Robert Petito's presence at the subject building.
Carol Masterson, the tenant of record, testified. She is 66 years of age and has lived in the rent controlled apartment for her entire life. She pays $296 per month and would have to live in a shelter if she were evicted from the apartment. Mr. Petito is her long term boyfriend. She testified that he does not live in her apartment but conceded that she did see him in March. She saw him three times when he came to her apartment unannounced and without her consent. She testified that he came to pick up his clothes. The third time he came to the building, he walked down the driveway and began removing black paint from her window. She testified that she did not know he was present and when she discovered him, she demanded that he leave. He left immediately. She also testified that she did not understand the need to tell the landlord about his presence at the building.
On cross-examination, Ms. Masterson testified that she has been with Robert Petito for over 25 years and calls him her husband. She required him to move out because the petitioner said there were drugs found in her apartment and she did not have knowledge of them. She testified that he moved out on March 4, 2010. She testified that he procrastinated for a whole month before picking up his things. She did not contact the landlord after his appearances at the building because she "didn't think she was doing anything wrong." On re-direct, Ms. Masterson testified that her highest level of education was junior high school.
Based on the totality of the evidence presented at the hearing, this Court determines that the breach of the Stipulation was de minimis. First, Mr. Petito's visits were unannounced and not with the consent of the tenant of record. Thus, the violation of the Stipulation was not conscious and intentional. Vega v. Franco, 277 AD2d 131 (1st Dept 2000); Cardona v. Franco, 267 AD2d 53 (1st Dept 1999). Second, the Court credits the tenant of record's testimony that she could not control Mr. Petito's behavior or stop him from visiting the building. Matter of Stroman v. Franco, 253 AD2d 398, lev denied 93 NY2d 817. Third, in balancing the equities, the Court finds that the forfeiture of the tenancy would be unconscionable considering its 66 year length, the nature of the breach — 3 visits in the same month, ranging between 10 to 15 minutes each, and the tenant of record's diligent efforts to comply. Chong King Enterprises Inc. v. Nunez, 21 Misc 3d 129(A) (App Trm 1st Dept); Matter of Hagan v. Franco, 272 AD2d 143 (1st Dept 2000). Finally, the tenant of record's failure to notify the landlord of Mr. Petito's presence was based on her misunderstanding of the import of the Stipulation and, in any event, did not injure the landlord or put the other tenant's in the building at risk. Lake Anne Realty Corp. v. Sibley, 154 AD2d 349 (2nd Dept 1989). There was no evidence that Mr. Petito's visits were based on illegal activity. It appears they were the result of his desire to visit the woman with whom he has spent over 25 years of his life.
Based on the foregoing, the motion is denied. The Court restores the respondent to the Stipulation which remains binding on the all parties herein. The Court shall mail courtesy copies of its decision/order to counsel.