Barbini v. Wohlforth

CourtNew York City Municipal Court
Writing for the CourtEUGENE M. McCARTHY
Citation221 N.Y.S.2d 896
PartiesOrestina BARBINI, Landlord, v. Timothy WOHLFORTH, Tenant.
Decision Date29 August 1961

Page 896

221 N.Y.S.2d 896
Orestina BARBINI, Landlord,
v.
Timothy WOHLFORTH, Tenant.
Municipal Court of City of New York, Borough of Manhattan,
Fifth District.
Aug. 29, 1961.

Page 897

Mario F. Rolla, New York City (Gerard T. McGuire, New York City, of counsel), for landlord.

Karpatkin & Karpatkin, New York City (Marvin Karpatkin, New York City, of counsel), for tenant.

EUGENE M. McCARTHY, Justice.

In this holdover summary proceeding the tenant moved at the end of the landlord's case to dismiss on the ground that the landlord accepted rent after the commencement of the proceeding. Decision was reserved, and the motion is now denied. Sec. 1410, subdiv. 8, Civil Practice Act. The rent was accepted, for a period prior to the expiration of the lease, on June 30, 1961 and after the commencement of this proceeding. Amalgamated Housing Corp. v. Luxenberb, 8 Misc.2d 831, 168 N.Y.S.2d 585.

The petition is based on nuisance in the conduct of the tenant's family, friends and visitors. The acts of the children cannot be said to be a nuisance. One child of two years of age cannot be held to disrupt the comfort of the landlord. The mother admitted that the child age five did use a tricycle around the room, and while it is expected that parents will control the activities of children beyond that which is normal, the landlord has failed in the required proof that a nuisance was thereby created. Shortly after the tenants moved in they had a 'housewarming party' at which there were approximately twenty guests. From the testimony it was evident that the peopld present were more active than just sitting around and talking. After complaint by the landlord quiet was restored. The landlord failed in the burden of proof that this condition continued with subsequent visitors or smaller groups so as to show that there was a continuing nuisance to warrant termination of the lease. There was no proof of any annoyance or inconveniecne to the other tenants. (Twin Elm Management Corp. v. Banks, 181 Misc. 96, 46 N.Y.S.2d 952.) (Vasapollo v. Zullo, Sup.App.Term, 1st Dept., unofficially reported in 72 N.Y.S.2d 393.)

Final order is therefore awarded to the tenant dismissing the petition.

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