DECISION AFTER HEARING Petitioner commenced this holdover proceeding against Respondent. A trial was held on Wednesday, May 19, 2021 and Friday, May 21, 2021. After review of the testimony and the evidence presented, the Court finds as follows: The parties entered into a written lease of a one family residence at premises at 41 Figcutter Avenue, Islip Terrace, New York for the one year period commencing June 1,2020, ending May 31, 2021 at a monthly rental of $2,900.00. Respondent paid Petitioner $2,900.00 as and for security. Paragraph “9″ of the lease provides that Respondent had inspected the subject premises, that it was in good order and repair and that Respondent was renting the property in “as is” condition. There were neither any further paragraphs nor subsequent agreements between the parties with respect to any repairs or obligations on the part of the Petitioner/Landlord. On or about June, 2020 Respondent, desirous of making full use of the backyard, took it upon himself to move two large rolling trailers, both of which Petitioner was storing on the property at the time of the execution of the lease and were located approximately 20 feet from the back door. Both trailers were secured with locks. Although the testimony was unclear as to how, Respondent testified that he opened one of the trailers and found bags labeled “asbestos’” with original manifests taped to each one with the details of the contents. Respondent’s further investigation of the other of the two trailers and the two shipping containers also being stored on the property and all of which were also secured with locks, revealed more of the same. Although the actual chronology of the ensuing events was unclear, both parties’ respective testimony was uncontrovered, that Respondent notified Petitioner of his concern for the safety of his family, demanded that she remove the trailers and the containers and refused to turn over the keys to the new locks that he had apparently put onto them. Respondent then contacted the Department of Labor as well as the Department of Environmental Conservation in an effort to orchestrate the removal. Petitioner’s demand for the keys was continually refused as Respondent testified that he didn’t trust that she wouldn’t open the containers without a proper, licensed asbestos removal company which he testified presented an immediate danger to his family. A letter was sent on behalf of Petitioner by her attorney dated August 12, 2020 by which Petitioner advised Respondent of his violation of the parties’ lease, that he cease and desist from interfering with Petitioner’s removal of the asbestos and that he provide the Petitioner with the keys to the trailers and containers within five days or he would be determined to have breached the lease. When he had stilled failed to provide Petitioner with keys or access to the trailers and the containers, Petitioner’s attorney forwarded a Notice of Default dated August 21,2020 to Respondent terminating the lease effective September 1, 2020 and advising that in the event he failed to vacate on or before September 1, 2020 a summary proceeding would be commenced against him. On his failure to vacate, Petitioner commenced this summary holdover proceeding. While there was conflicting testimony, Respondent has not made any further payment to Petitioner for either rent or use and occupancy since a payment in July, 2020. Although in his Answer he alleges that the notices were defective and unwarranted, Respondent offered no testimony in support of those allegations nor did he deny his receipt of any of the required predicate notices each of which the Court finds complies with the applicable sections of the Real Property Law. Paragraph “15″ of the subject lease provides in pertinent part: Tenant must give to Landlord keys to all locks. Locks may not be changed or additional locks installed without Landlord’s consent. In paragraphs “4″ and “5″ of the Petition, Petitioner alleges that Respondent installed new locks on the subject units, that Petitioner demanded the keys and that Respondent failed to provide them. In his Answer to the Petition, Respondent acknowledges that Petitioner demanded the keys. He acknowledges in his Answer as well as in his testimony at trial, that he did not provide the keys as he was following written instructions from one Paul Billera, a safety and health inspector from the New York State Department of Labor. Mr. Billera, called as Respondent’s witness, disputed that allegation, testifying that at no time did he have any conversation concerning any keys to the trailers and containers nor did he at any time advise Respondent not to provide them to the Petitioner. That testimony was echoed by one James Meacham, Program Manager, Asbestos Control Bureau from the Department of Labor, also called as Respondent’s witness. Admitted into evidence were pictures of the subject property taken by Respondent which show the trailers and containers and other debris on the property. Petitioner acknowledges that there is asbestos in the trailers and the containers each of which should be removed from the property by a certified asbestos removal company. Other than Respondent’s testimony, there was no evidence adduced that would indicate or support that the storage of the asbestos, in its present condition and location, poses any threat or danger. Although the lease imposes no obligation to remedy or otherwise address this situation, Petitioner has agreed to remove the trailers and containers. It is Respondent who has asserted himself as having the right to assume responsibility for the logistics of its removal, refusing to turn over the keys and the original manifests that were attached to each of the packages. Arguing that Petitioner has not been as responsive as he believes she should have been, he apparently contacted Newsday, News 12 Long Island and the Office of the District Attorney and, although he alleges that he was at work when they arrived at the premises, made the property available for their reporting and investigation. There was no testimony nor evidence to support any violations and/or charges against Petitioner in response. The Court finds Respondent’s refusal to turn over the keys to the trailers and containers constitutes a serious, material breach of the lease. By refusing to allow Petitioner access to the trailers and containers he has and continues to obstruct any effort she may make to remedy the very issue about which Respondent is complaining and which forms the basis for Petitioner’s termination of the lease. The Court finds that Petitioner has sustained her burden, that Respondent’s conduct constitutes a material breach of the lease, that Petitioner terminated that lease on proper notice to Respondent and that Respondent remains in possession without having made any payment. Respondent’s testimony that he prepaid two months rent in July was unsupported and contradicted by Petitioner. Even had Respondent paid rent “in advance”, same is not recoverable as the lease has been terminated early for reason other than non-payment. 1251 Arms. Assoc. II. L.P. v. Rock 49th Rest. Corp.; 831 NYS2d 360 (App. Ter, 1st Dept. 2006). The Court finds Petitioner’s demand for the monthly sum of $2,900.00 as and for use and occupancy is reasonable as same is the equivalent of that which was being paid by the Respondent under the terms of the terminated lease. Sodlak v. Light, 31 NYS3d 924 (App. Term, 9th & 10th Dists. 2016). Only the prevailing party is entitled to recover attorney’s fees and only under circumstances where the lease is terminated due to a beach by the tenant. Weidman v. Tomaselli, 386 NYS2d 276 (App. Term, 9th & 10th Jud. Dists. 1975). As this Court has found Respondent to have committed a material breach of the lease, the Court finds Petitioner is entitled to an award of counsel fees in an amount to be determined after a hearing to be held on a date set by the clerk. The Court finds in favor of Petitioner. A Judgment of Possession and Warrant of Eviction without a stay are awarded in favor of the Petitioner. Money Judgment is awarded in favor of Petitioner in the amount of $23,200.00 representing use and occupancy at $2,900.00 per month for nine months minus security in the amount of $2,900.00. The foregoing constitutes the Decision and Order of the Court. HEARING RE: COUNSEL FEES: June 17, 2021 9:30 am Dated: May 24, 2021
