Opinion
No. L & T 80375/13.
11-14-2014
WEST 141 STREET LP, Petitioner–Landlord, v. Michael EDMONDS, Respondent–Tenant, “John Doe” and/or “Jane Doe”, Respondents–Undertenants.
Rose & Rose by Peter A. Rose, Esq., New York, attorneys for petitioner. Roger W. Moore, Brooklyn, Guardian Ad Litem for respondent. Michael Edmonds, New York, respondent pro se.
Rose & Rose by Peter A. Rose, Esq., New York, attorneys for petitioner.
Roger W. Moore, Brooklyn, Guardian Ad Litem for respondent.
Michael Edmonds, New York, respondent pro se.
Opinion
SABRINA B. KRAUS, J.
This summary holdover proceeding was commenced by WEST 141 STREET LP (Petitioner) against MICHAEL EDMONDS (Respondent), seeking to recover possession of Apartment 1G at 156–168 West 141 Street a/k/a 156 West 141 Street, New York, N.Y. 10030 (Subject Premises) based on the allegation that Respondent, the rent stabilized tenant of record, has created a nuisance at the Subject Premises by maintaining himself and the Subject Premises in an unsanitary condition.
PROCEDURAL HISTORY
Petitioner issued a Notice of Termination on August 14, 2013. The Notice alleged
Respondent has allowed a smell of urine to emanate from the Subject Premises, and that this smell permeates the building, and that Respondent has maintained the Subject Premises in a dirty and colliers like condition. The petition is dated September 27, 2013, and the proceeding was initially returnable on October 17, 2013.
Respondent failed to appear on the initial date and an inquest was scheduled for November 14, 2013. On November 14, 2013, Respondent appeared and the proceeding was adjourned to December 10, 2013 for trial. The court directed Respondent to prepare an answer.
On December 10, 2013, Respondent failed to appear and the court (Spears, J) conducted an inquest and awarded Petitioner a final judgment of possession as against Respondent. The court “severed the proceeding without prejudice” as against John and Jane Doe.
The warrant of eviction issued February 5, 2014.
On March 19, 2014, Respondent moved to vacate his default. Respondent asserted he had been hospitalized and that his illness had resulted in his default. Petitioner cross-moved for an order directing Respondent to pay use and occupancy. The court (Gonzales, J) adjourned the motions and made a referral to Adult Protective Services (APS). The referral indicated Respondent was being referred to APS for hoarding due to a medical condition.
On April 14, 2014, APS sent a notification to the court that visits to the Subject Premises had been made on March 11, 2014 and March 12, 2014 and that Respondent was eligible for protective services as of March 6, 2014.
On June 2, 2014, the court (Gonzales, J) granted Petitioner's cross-motion to the extent of staying execution of the warrant of eviction through June 30, 2014, for the payment of $7558.30 in outstanding use and occupancy.
On June 17, 2014, APS moved for an order appointing a GAL for Respondent and for related relief. The motion was supported by the Psychiatric Evaluation Report of Dr. Arshad Zaidi, which Respondent submitted in evidence at trial (Ex B). The report provided that Respondent was on involuntary leave from his employment because of his poor personal hygiene and because he smelled of urine. Dr. Zaidi stated “Due to the intense smell of urine, I was not able to evaluate (Respondent) in the apt and asked if he could see me outside to which he graciously agreed.” Dr. Zaidi further noted that Respondent smelled of urine, and had neglected his own medical care, and that even after an APS heavy duty cleaning and Respondent's efforts to maintain the Subject Premises, the Subject Premises continues to smell from urine. The motion was granted by the court, and the proceeding was adjourned to July 7, 2014, for the GAL to appear.
On June 20, 2014, the court signed an order appointing Roger W. Moore as GAL for Respondent herein.
On July 7, 2014, the court granted the pending motion by Respondent to vacate his default to the extent of vacating the judgment and warrant and restoring the proceeding for trial on July 30, 2014.
On October 15, 2014, the proceeding was assigned to Part L for trial. The trial commenced on said date and continued on November 12, 2014, when Petitioner rested. After Petitioner rested, the GAL made an application for a continuance based on the fact that Respondent had failed to appear for the November 12, 2014 court date, and the GAL had planned on offering the testimony of Respondent and did not know why Respondent had not appeared. The GAL's application was granted by the court, to the extent of adjourning the trial to November 14, 2014, for Respondent to appear.
On November 14, 2014, Respondent appeared and testified. At the conclusion of Respondent's testimony, Respondent rested and the court reserved decision.
FINDINGS OF FACT
Petitioner is the owner of the Subject Premises pursuant to a deed dated March 18, 2004 (Ex 3). Respondent is the rent stabilized tenant of record for the Subject Premises. Respondent has lived in the Subject Building since approximately 1984. In approximately 2005 or 2006, all the tenants in the building were relocated for renovations of the building. When Respondent moved back he was relocated to Apartment 1G, because of his knee replacement surgery and his difficulty negotiating stairs in the building which has no elevator. The first lease Respondent executed for the Subject Premises was executed in September 2003 (Ex 6). This lease was most recently renewed for a period through and including September 12, 2014 (Ex 7) .
This renewal has some irregularities in that it is dated August 23, 2013, and has a signature date of November 22, 2013, although the term runs from September 13, 2012.
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Petitioner presented the testimony of four tenants at trial, in addition to the testimony of the current Superintendent and Managing Agent. The testimony of these witnesses credibly established that Respondent has created a nuisance ion the Subject Premises from 2011 forward that creates an unbearable stench of urine throughout the public areas of the Subject Building. This condition became worse from 2012 forward. The condition is a result of Respondent's incontinence as a result of medical conditions.
The witnesses' testimony included observations of Respondent urinating on himself in public areas of the building, and urinating in front of the building. The witnesses credibly testified that the odor comes both from Respondent's person and the Subject Premises. Respondent's conduct has resulted in puddles of urine being left in the common areas of the building, and on one recent occasion puddles of blood in the common areas and in front of the building. Respondent had also at one time urinated in glass bottles and disposed of them in the backyard, but had ceased this particular conduct. Respondent was observed urinating in front of the building on more then one occasion.
On October 15, 2014, the first date of the trial herein, the Court could detect that Respondent and his clothes smelled from urine to the point where it was uncomfortable for the court and staff to conduct the proceedings in his presence.
Despite numerous attempts to have deep cleaning in the Subject Premises and the intervention of APS, the condition continues worse then ever.
The condition has substantially impacted the ability of the other tenants to use and occupy their homes, and particularly to access any public areas of the subject building.
Respondent acknowledged that the condition has existed in his testimony. Respondent testified that he first became incontinent in 2011. He was fired from his job due to repeated incidents where he urinated on himself at work, and based on complaints his co-workers made about the fact that he smelled from urine. Respondent's incontinence has grown worse since 2011. Respondent stated that he has become immune to the smell of urine on himself and in the public areas of the building, but acknowledged that the smell of urine inside the Subject Premises is so severe, that even he can smell it.
Respondent acknowledged that when he took possession of the Subject Premises it was a brand new renovated apartment, with a new bathroom and kitchen. Respondent testified that since 2011, due to his urinating in the Subject Premises, the floor has become permeated with the smell of urine and it is smell that Respondent does not believe can be removed without replacing the floor.
Respondent acknowledged that he has engaged in hoarding in the Subject Premises, but also testified that APS has conducted three deep cleanings of the Subject Premises. Respondent testified that he has removed at least ten bags of garbage from the Subject Premises.
Respondent did acknowledge throwing a bottle of urine into the backyard of the Subject Premises on one occasion, but stated he never did it again after the Super spoke with him about the incident. Respondent also acknowledged an incident where he left large puddles of blood in front of the building and in the hallway after cutting himself.
Respondent alleged that he has taken steps to address the problem. Respondent testified that he has new doctors, and is on new medication, and has arranged for a visiting nurse service. However, its is clear that none of these steps has made any significant impact on alleviating the ongoing condition in the Subject Premises and the suffering of the other tenants.
Respondent's testimony was not credible in large part. Respondent consistently contradicted his own testimony, and his testimony was contradicted by the testimony of the other tenants whom the court found to be credible. In particular, the allegation that the condition has been cured in any way was found not credible by the court.
DISCUSSION
§ 2524.3(b) of The Rent Stabilization Code allows for eviction where the tenant “... is committing or permitting a nuisance” in the apartment or subject building.
A tenant's conduct constitutes a nuisance when it interferes with the use and enjoyment of the property by other tenants, and when it is continuous(Domen Holding Co. v. Aranovich 1 NY3d 117, 123–124 ). “A nuisance is a condition that threatens the comfort and safety of others in the building (Frank v. Park Summit Realty 175 A.D.2d 33, 35 ).”
Causing an odor of urine in public areas of a building has been held to constitute a nuisance [see eg 2170–2178 Broadway LLC v. Ross 14 Misc.3d 137(A) ]. Respondent's behavior which results in the stench of urine throughout the public areas of the building, constitutes a nuisance and has interfered with the ability of other tenants to use and enjoy those public areas of the building. This is true even though Respondent is not intentionally engaging in such conduct, which is attributable in part to his medical conditions.
Respondent's behavior has also put the safety of the other tenants in jeopardy by allowing urine and blood to fall in the common areas of the building.
It appears that an independent living situation is no longer a viable option for Respondent, given his inability to address his incontinence, and while the Court has empathy for Respondent, the other tenants in the building are entitled to live in a building that does not smell from urine or expose them to Bio Hazards in the common areas of the building.
While Respondent testified to taking steps to attempt to cure the problem, it is clear that the condition persists and Respondent is not capable of curing the condition.
Based on the foregoing, the court finds that Petitioner is entitled to a final judgment of possession. The warrant of eviction shall issue forthwith. Execution of the warrant is stayed for thirty days, and must be on notice to APS and the GAL.
This constitutes the decision and order of the Court.