WEST 12TH LLC v. GROSSBERG

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WEST 12TH, LLC, Petitioner–Respondent, v. Pearl GROSSBERG, Respondent–Appellant.

Decided: November 22, 2011

ANDRIAS, J.P., FRIEDMAN, RENWICK, DeGRASSE, ABDUS–SALAAM, JJ. Kellner Herlihy Getty & Friedman, LLP, New York (Carol Anne Herlihy of counsel), for appellant. Steven Raison, New York, for respondent.

Order of the Appellate Term of the Supreme Court, First Department, entered July 29, 2010, which modified a judgment of Civil Court, New York County (Gerald Lebovits, J.), entered on or about February 20, 2007, after a nonjury trial, awarding possession of respondent tenant's apartment to petitioner landlord, to the extent of vacating so much of the judgment as afforded tenant a postjudgment opportunity to cure pursuant to RPAPL 753(4), and dismissed, as academic, landlord's appeal from an order, same court and Judge, entered on or about May 21, 2007, which granted tenant's motion for an extension of her time to cure until July 20, 2007, unanimously affirmed, without costs.

The Civil Court, in its judgment awarding possession of the subject apartment to the landlord, held that the tenant's demolition and replacement of the bathroom walls caused a “lasting or permanent injury” to the apartment, and thus constituted a substantial violation of the lease. The court also held that the tenant substantially violated the lease by renovating the bathroom walls without first conducting an asbestos test before removing the walls; failing to insure that the new Sheetrock she installed had the proper fire rating; and failing to secure necessary permits or approval from the Department of Buildings and the Landmark Preservation Commission, all of which exposed the residents of the building to dangers like asbestos and fire, and the landlord to numerous violations, fines and lawsuits.

The Appellate Term correctly held that this lasting or permanent injury to the premises by demolition of the existing bathroom was not capable of any meaningful cure (see 230 E. 14th St LLC v. Klufas, 11 Misc.3d 132[A], 2006 N.Y. Slip Op 50368[U][2006]; compare Stolz v. 111 Tenants Corp., 3 AD3d 421 [2004] [tenants could cure by removing greenhouse but could not do so within the 10–day period provided in RPAPL 753(4), thus entitling them to Yellowstone injunction] ). While RPAPL 753(4) provides that a court “shall grant a ten day stay of issuance of the warrant, during which time the respondent may correct such breach,” implicit in that mandatory directive is that the breach may be cured. As we noted in Wilen v. Harridge House Assoc. (94 A.D.2d 123 [1983] ), the sponsor's memorandum in support of the amendment to the statute adding subdivision (4) states “that it was designed to cover breaches ‘temporary in nature correctable within the ten day period’ “ (id. at 130, quoting N.Y. Legis Ann, 1982, p 280). Because the tenant in this case caused a lasting or permanent injury to the premises, she was not entitled to any stay for the purpose of correcting an uncorrectable breach.