DECISION & ORDERBACKGROUND In this Holdover Proceeding, petitioner Renewal Realty Corp. seeks to recover possession of Apartment 2A at 3418 Gates Place, Bronx, New York 10467 from respondent Rent Stabilized tenant Julianna Almonte based on a Notice of Termination dated March 15, 2018 which states three grounds for termination of the tenancy under the Rent Stabilization Code (RSC): (1) unreasonable refusal to provide access to Petitioner for the purpose of making necessary repairs (RSC §2524.3[e]); (2) committing or permitting a nuisance (RSC §2524.3[b]); and (3) refusal to renew an expiring lease (RSC §2524.3[f]). Respondent1 served and filed an answer by counsel raising affirmative defenses of estoppel/waiver, cure and retaliatory eviction and counterclaims of harassment, retaliation for submitting complaints to the City’s Department of Housing Preservation and Development (HPD) and breach of the warranty of habitability. After four adjournments in a Resolution Part, three adjournments in Part X and one adjournment in the Trial Part, the case proceeded to trial on February 15, 2019. Three of the adjournment stipulations in the Resolution Part included access dates for repairs to be done and three required petitioner or its attorney to send the renewal lease to respondent or her attorney. TRIALPetitioner’s first witness was Kirk Holmes, a property manager and legal assistant. In addition to the deed, HPD multiple dwelling registration statement and rent registration statement from the New York State Division of Housing and Community Renewal, he offered into evidence, without objection, respondent’s original lease dated January 15, 2009 for the one-year period of March 1, 2009 through February 28, 2010 and a current renewal lease dated May 29, 2018 for the two-year period of March 1, 2018 through February 28, 2020. Mr. Holmes testified that respondent signed the current renewal lease on July 27, 2018, after this case was commenced. It is his office’s policy to send out a renewal lease offer six months prior to the expiration of a tenant’s existing lease. If the tenant does not sign and return it, a second copy is mailed out three months later. If the lease is still not signed and returned, a third written request is sent out and if that doesn’t work his office will try to reach the tenant by telephone. In this case, petitioner’s agent testified that the three written attempts were made and that respondent could not be reached by telephone. He did not offer into evidence any supporting documentation.Mr. Holmes further testified that respondent is a nuisance as she had threatened the superintendent and other of petitioner’s employees numerous times. Petitioner also had received complaints from the tenant in Apartment #1A, the apartment below respondent’s. Mr. Holmes inspected the bathroom ceiling in Apartment #1A and observed water damage. He then went to respondent’s Apartment, #2A, where he checked the bathroom plumbing. He observed a bucket in the bathtub and water on the floor by the toilet and the heating pipe.Regarding access, Mr. Holmes testified that he sent respondent numerous letters scheduling access for repairs to address violations placed by HPD, that the superintendent tried to obtain access on the dates listed in the letters and respondent would not let him in. As far as he knew, respondent had never reached out to his office in response to those letters to schedule access. Petitioner placed into evidence, without objection, copies of eight letters which he testified were sent to respondent by both first-class “regular” mail and by certified mail and also placed under her door, as follows:Dated 12/29/2017, scheduling access for 1/2/2018 and 1/3/2018, from 9 am to 12 pm and again from 3 pm to 5 pmDated 1/12/2018, scheduling access for 1/17/2018, 1/18/2018 and 1/19/2018, from 9 am to 12 pm and again from 3 pm to 5 pmDated 1/15/2018, also scheduling access for 1/17/2018, 1/18/2018 and 1/19/2018, from 9 am to 12 pm and again from 3 pm to 5 pmDated 1/19/2018, asking respondent to let the office know a time that works best for her between the hours of 8 am and 4 pm, Monday through Friday, for access to address NYC violation # 121400305961283Dated 1/31/2018, asking respondent to let the office know a time that works best for her between the hours of 8 am and 4 pm, Monday through Friday, for access to address NYC violation # 12213415Dated 2/7/2018, asking respondent to let the office know a time that works best for her between the hours of 8 am and 4 pm, Monday through Friday, for access to address the “numerous NYC HPD violations” received for her apartmentDated 4/19/2018, scheduling access for 4/24/18 and 4/25/18, from 9 am to 12 pm and again from 3 pm to 5 pm, to address HPD complaint # 9034827 and “To complete all the repairs needed in your apartment”Dated 4/25/18, asking respondent to let the office know a time that works best for her between the hours of 8 am and 4 pm, Monday through Friday, for access to address a NYC HPD violationThe letters sent by certified mail on all dates except for 12/29/18 and 1/12/18 were returned to petitioner, unopened.Mr. Holmes testified that respondent never called the office, that the superintendent tried to obtain access on the dates listed in the letters and that respondent would not let him in.On cross-examination, Mr. Holmes acknowledged that the letters were sent in English and testified that both he and someone else in his office who speaks Spanish tried to reach respondent by telephone to schedule access. Mr. Holmes was not the person who put the copies under respondent’s door, that was done by the superintendent. Mr. Holmes also acknowledged that respondent has provided access in the last nine months, that he was in respondent’s apartment most recently on the preceding Tuesday and that there are no outstanding repairs.Petitioner’s second witness was its superintendent Francisco Romero, who testified through a Spanish language interpreter. He resides in the same building where respondent lives and has put many letters under her door which the management office sends him to deliver to her. The first time he was in respondent’s apartment was “years ago”, but he has not been there since January or February of last year and cannot go into her apartment because “she kicked me out of the apartment” and threatened him and he “had to file suit against her”; other workers have made the repairs in her apartment since then.Respondent’s defense consisted solely of her own testimony, through a Spanish language interpreter. Respondent testified that she has lived in her apartment since 2008 and works as a “foster mother”. She called “3-1-1″ on October 20, 2017, December 4, 2017 and January 9, 2018 to report conditions in her bathroom and kitchen; the kitchen was worse, as there was “a lot of water falling”. She testified that she had tried to contact the landlord’s office before calling “3-1-1″ but could not get through. In January 2018 “Gilberto”, one of petitioner’s workers, came to her apartment, shut off the water valve in her bathroom but made no repairs.When questioned about letters from petitioner, respondent testified that she had received “about 900″ by mail, under her door and sometimes “I go pick them up”. However, she cannot always go to the post office because of “taking care of the kids” and because “my legs aren’t what they used to be”. Respondent testified that while she doesn’t speak much English, she did understand the letters, they’re all about scheduling access for repairs and that, other than Gilberto coming in January 2018, no one else came to do any work in her apartment in the months right before this proceeding was started.As for the lease renewal, respondent testified that she did not receive it in the mail prior to the commencement of this proceeding but went to get it thereafter at her lawyer’s office and signed it there.On cross-examination respondent testified that she speaks and reads a little bit of English and when she can’t understand something she gives it to her son to read for her. Respondent’s son translated some of petitioner’s letters for her and she knows that the letters are about “coming to do the repairs.” However, respondent testified, “they never come.” As for attempts to contact the landlord, respondent testified that her son has called twice, her ex-husband also called and that whenever she calls “they don’t answer the phone” and she can’t leave a message because the mailbox is full. She did not send anything to the landlord in writing because people who work for the landlord have been to her home and the landlord knew what was needed. The landlord himself came to her apartment with someone named “Alberto” approximately a year and a half ago, in the summer of 2017. She showed him everything that the mice had eaten and he “took down all the information”. He told her he would come back but he did not return. She did not know his name and described him as 50 to 60 years old, short, not Hispanic. On another occasion after that, after leaving him a message on his cell phone, petitioner’s manager named “Isaac” returned her call and then came to her apartment.On redirect, respondent testified that she was home on all three of the access dates scheduled in a written stipulation dated May 29, 2018, that no one came on either of the first two dates (June 4th and 5th) but workers did come on the third date (June 6th) and “put a little cement on the ceiling”. The repairs were only completed recently, in January and February of this year.DISCUSSIONNuisance ClaimUnder Rent Stabilization Code §2524.3(b), grounds for eviction will be found where it is established that the tenant has committed or permitted a nuisance. Courts have defined a nuisance as “a recurring or continuing pattern of objectionable conduct by a tenant that threatens the comfort and safety of others in the building.” Roxborough Apts Corp v. Kalish (22 Misc3d 130[A], 880 NYS2d 876 [App Term 1st Dep't 2009]) citing Domen Holding Co v. Aranovich (1 NY3d 117, 124, 802 NE2d 135, 769 NYS2d 785 [2003]). The Appellate Term in Roxborough Apts Corp v. Kalish, supra, reversed the lower court’s denial of summary judgment to the respondent-tenant and dismissed a nuisance holdover proceeding, finding that, “In the absence of any claim or showing that tenant’s alleged refusal to allow the landlord access to the subject apartment to remedy the lead paint condition therein in any way affected other building residents, landlord failed to state an actionable claim for nuisance.”Isolated incidents of objectionable conduct where there is no continuing pattern do not establish a nuisance, and “not every annoyance will constitute a nuisance.” Domen Holding, supra (1 NY3d at 123, 802 NE2d at 139, 769 NYS2d at 789). See Tsangarinos v. Attaway (43 Misc3d 142[A], 993 NYS2d 646 [App Term 1st Dep't 2014])(affirming trial court’s determination that two altercations over five years were not shown to have substantially threatened the comfort and safety of others at the building premises); S&M Enterprises v. Lau (3 Misc3d 127, 787 NYS2d 681 [App Term 1st Dep't 2004])(isolated occurrences of water leaks emanating from the tenant’s bathtub did not support a finding of nuisance); Madison Cent Corp v. Weider (91 NYS2d 437, 438 [App Term 1st Dep't 1949])(a tenant’s single act of kicking and scratching an elevator door did not constitute a nuisance).Here, petitioner failed to establish by a preponderance of the evidence that respondent committed or permitted a nuisance in the building warranting her eviction. The alleged objectionable conduct falls into two categories: (1) threatening the superintendent and other employees; and (2) water leaking into the apartment below respondent’s and causing damage.Neither Mr. Holmes nor the superintendent testified as to what the alleged threats were and when they were made or any details of the testimony that respondent “kicked out” the superintendent from her apartment. It is undisputed that after a certain point approximately a year ago — an unspecified date in January or February 2018 — the superintendent was not permitted to enter respondent’s apartment; however, what occurred that lead to this hostility was not described by any of the witnesses. Nor was any evidence presented about any threats respondent may have made to any other of petitioner’s employees.As for water leaks, there was no evidence that respondent had engaged in any behavior — objectionable or otherwise — that caused water to leak into the apartment below hers. The only relevant testimony was from Mr. Holmes, who testified that on one occasion he observed water damage to the ceiling in the apartment below respondent’s and then, upon entering respondent’s apartment, observed a bucket in respondent’s bathtub and an unspecified amount of water on the floor of her bathroom by the toilet and the heating pipe. This testimony does not establish that respondent committed or permitted a nuisance, especially given respondent’s undisputed testimony that she had problems in her own bathroom as well as in her kitchen which she complained to HPD about several times starting in October 2017.Failure to Provide Access ClaimNor did petitioner show by a preponderance of the evidence that respondent had unreasonably refused its workers access to make repairs warranting eviction under Section 2524.3(e) of the Rent Stabilization Code. Clearly respondent has provided access to petitioner’s agents at various relevant times: Mr. Holmes himself testified that while responding to the complaint of a water leak in Apartment #1A he went in to respondent’s apartment (#2A) to investigate; he did not mention any problem gaining access to respondent’s apartment to do so. Further, petitioner offered no rebuttal to respondent’s credible testimony as to various other times she provided access: in the summer of 2017 to someone whose name she did not know (who came with someone else named Alberto) who “took down all the information” and promised to return but did not; to Isaac2, a few months later, whom she had called on his cellphone and who called her back and came to her apartment a few days later; to Gilberto who came in January 2018 and shut off the water valve in the bathroom. Respondent also apparently had provided access to the superintendent up until January or February of 2018 when she allegedly threatened him and kicked him out for reasons that were not explained by either party.Respondent acknowledged receiving many letters from petitioner and credibly testified that because she is a “foster mother” she has to be at home with the children and can’t always get to the post office to pick up the ones that were sent by certified mail. However, she knew that the letters were about scheduling dates for repairs and her testimony was that nobody ever came to make repairs when they said they would. Yet petitioner offered no testimony either in its case-in-chief or on rebuttal from anyone who had allegedly gone to respondent’s apartment on either the access dates listed in the letters or on any other dates and what transpired when they knocked on her door. The only testimony on this critical element of petitioner’s claim was the conclusory statement by Mr. Holmes that the superintendent tried to obtain access on the dates listed in the letters and respondent would not let him in. The Court also notes that of the eight letters, only three scheduled access for dates prior to the date of the predicate termination notice3 and two of those three letters referenced the same dates. Whether those dates were scheduled prior to when respondent allegedly “kicked out” the superintendent from her apartment cannot be determined from the testimony and, in any event, neither the superintendent nor anyone else testified that they went to respondent’s apartment on the dates listed in the letters and were refused access. Nor did petitioner offer any rebuttal to respondent’s claims that when she would try to reach petitioner’s office by telephone to schedule access for repairs she could never get through to anyone and the voicemail was always full.The evidence petitioner presented was limited to showing that petitioner scheduled five access dates in January 2018 by letters that were mailed and placed under respondent’s door by the superintendent. Petitioner failed to show that it followed through on the letters by sending workers on those dates or that respondent then “unreasonably refused” to provide access for repairs. Respondent, on the other hand, credibly testified that she at all relevant times wanted petitioner to make the needed repairs, was home taking care of children as a foster mother but was frustrated by her inability to secure follow-through by those of petitioner’s agents who did come to her home.Whatever the reason was that access could not be arranged and repairs completed prior to this litigation, it was undisputed that access for repairs has not been a problem throughout the pendency of this proceeding — other than a problem for respondent, who testified that out of the three access dates scheduled for June 4th, 5th and 6th 2018 petitioner’s workers came on only one — and at present all conditions have been corrected.Failure to Sign Renewal LeaseA tenant’s refusal to renew an expiring Rent Stabilized lease after being given proper advance notice is grounds for eviction. RSC §2524.3(f). The type of notice a landlord must provide is delineated in RSC §2523.5(a), with specific requirements as to the number of days’ notice (not more than 150 and not less than 90 days prior to the end of the tenant’s lease term) and the manner of notification (by mail or personal delivery). Here, petitioner’s proof on this claim consisted solely of Mr. Holmes’ testimony as to his office’s usual procedure of sending out three written lease renewal requests, with follow up by telephone if there is still no response from the tenant, and the conclusory statement that these procedures were followed in this case. The perfunctory testimony of Mr. Holmes was not supported by any documentation and was contradicted by respondent’s credible testimony that she did not receive a lease renewal before this proceeding started; rather, she went to get it at her attorney’s office and signed it there. Petitioner provided no explanation for the fact that the lease renewal respondent signed on July 27, 2018 is dated May 29, 2018, which the Court notes is the same day as the second court appearance in this proceeding and two months after the lease’s start date of March 1, 2018. Accordingly, petitioner did not meet its burden of proving by a preponderance of the evidence that respondent refused to renew an expiring lease following proper notice.In any event, over the course of this proceeding the parties entered into three written stipulations that required petitioner to send the renewal lease to respondent: the first dated 5/29/18 required petitioner’s attorney to email it to respondent’s counsel within ten days; the second dated 7/16/18 states “renewal lease to be given to tnts atty by 7/20/18″; the third dated 9/20/18 required petitioner to send the signed renewal lease to respondent within ten business days. Accordingly, the lease renewal issue appears to have been resolved on consent as respondent effected a cure by signing the renewal lease on July 27, 2018. See 6 Greene St Assocs LLC v. Robbins (256 AD2d 169, 681 NYS2d 530 [1st Dep't 1998]).COUNTERCLAIMSRespondent’s counterclaims for harassment, retaliatory eviction and breach of the warranty of habitability are dismissed, as respondent neither presented sufficient evidence nor requested an affirmative award of damages. As for the counterclaim for attorneys’ fees, if respondent wishes to pursue this she may do so by restoring this proceeding to the Court’s calendar by motion.CONCLUSIONFor the reasons stated above, and based on the credible evidence adduced at trial, the petition is dismissed, with prejudice. This constitutes the Decision and Order of this Court, copies of which will be mailed to the parties’ respective attorneys unless picked up in the Part forthwith. Counsel may pick up their documents that were submitted into evidence as trial exhibits from the Part Clerk in Room 409 or 410 within thirty days. If the exhibits are not picked up by March 25, 2019, they may be disposed of in accordance with Administrative Directives.Dated: February 21, 2019Bronx, New York
