Cite as: Tri Cruger Realty, LLC v. Masterson, 570636/11, NYLJ 1202585424074, at *1 (App. Tm., 1st, Decided August 24, 2012)

Before: Hunter, Jr., J.P., Shulman, Torres, JJ.

Decided: August 24, 2012




Le andlord appeals from an order of the Civil Court of the City of New York, Bronx County (Kevin C. McClanahan, J.), dated August 25, 2010, which, after a hearing, denied its motion to execute upon a warrant of eviction issued pursuant to a stipulation settling a holdover summary proceeding.


Order (Kevin C. McClanahan, J.), dated August 25, 2010, affirmed, with $10 costs.

A fair interpretation of the evidence supports the hearing court's fact-laden determination that tenant did not materially breach the governing settlement stipulation when




she failed to immediately notify landlord of former occupant Robert Petito's presence at the building premises (see Matter of Vega v. Franco, 277 AD2d 131 [2000]; Matter of Cardona v. Franco, 267 AD2d 53, 54 [1999]). As the hearing court expressly found, Petito's brief, unannounced visits to the premises, ostensibly to retrieve his possessions, "did not injure the landlord or put the other tenants in the building at risk…[and] were [not] based on [the] illegal activity" alleged in the holdover petition. In these circumstances, and since the stipulation expressly authorized the court to determine "whether a breach of th[e] agreement occurred and whether such breach [was] material," we are not persuaded that the isolated events complained of by the landlord warrant forfeiture of this rent-controlled tenancy spanning more than half a century (see 160 W. 118th St. Corp. v. Gary, 32 Misc 3d 1 [2011]).