Strata Realty Corp. v. Pena, 7142

• Decision Date: 01 November 2018
• Docket Number: 7142,570821/16
• Citation: 166 A.D.3d 401,86 N.Y.S.3d 74
• Parties: In re STRATA REALTY CORP., Petitioner–Respondent, v. Rosa PENA, Respondent–Appellant, John Doe, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

166 A.D.3d 401

86 N.Y.S.3d 74

In re STRATA REALTY CORP., Petitioner–Respondent,

v.Rosa PENA, Respondent–Appellant, John Doe, et al., Respondents.

7142

570821/16

Supreme Court, Appellate Division, First Department, New York.

ENTERED: NOVEMBER 1, 2018

Manhattan Legal Services, New York (Rubin Englard of counsel), for appellant.

Rosenberg & Estis, P.C., New York (Bradley S. Silverbush and Nithin E. Jayadeva of counsel), for respondent.

Acosta, P.J., Sweeny, Manzanet–Daniels, Gesmer, Singh, JJ.

Order of the Appellate Term, First Department, entered December 4, 2017, which affirmed a judgment of Civil Court, New York County (Laurie L. Lau, J.), entered April 4, 2016, after a nonjury trial, awarding possession of a rent stabilized apartment to petitioner landlord, and an order, same court and Judge, dated November 21, 2016, which denied respondent tenant's motion for a further stay of execution of the warrant of eviction, unanimously modified, on the facts and in the exercise of discretion, to grant a 90–day stay of the execution of the warrant of eviction, to direct that respondent and her family vacate the premises within seven days after the date of this order and that petitioner provide alternative suitable accommodations during the period of construction, to enjoin respondent and her family from entering the premises while the construction is ongoing, to direct that the apartment, which is to be repaired in accordance with petitioner's instructions, be left broom-swept clean and free of debris and dust at the conclusion of the construction, and to enjoin respondent from filing complaints with governmental authorities about the construction without first notifying petitioner, and otherwise affirmed, without costs.

Ample evidence supports Civil Court's finding that respondent's continuing and repeated complaints to the New York City Department of Housing Preservation and Development (HPD), followed by her refusal to permit petitioner to correct violations that had the potential to compromise the health and safety of the building's residents, constituted a nuisance (see Domen Holding Co. v. Aranovich, 1 N.Y.3d 117, 124, 769 N.Y.S.2d 785, 802 N.E.2d 135 [2003] ; 12 Broadway Realty, LLC v. Levites, 44 A.D.3d 372, 843 N.Y.S.2d 233 [1st Dept. 2007] ).

Respondent admitted that she complained to HPD numerous times, without prior notice to petitioner of the complained-of conditions, and that she refused to permit petitioner to encapsulate the walls and replace the bathroom...