200 E. 27 LLC v Gru (2009 NY Slip Op 50542(U))

200 E. 27 LLC v Gru

2009 NY Slip Op 50542(U) [23 Misc 3d 127(A)]

Decided on March 31, 2009

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

200 East 27 LLC, Petitioner-Landlord-Appellant, 570066/09

against

Sy Gru, Respondent-Tenant-Respondent.

Landlord appeals from an order of the Civil Court of the City of New York, New York County (Oymin Chin, J.), dated August 21, 2008, which granted tenant's cross motion to dismiss the holdover petition and denied, as moot, landlord's motion to dismiss specified affirmative defenses and counterclaims in tenant's answer.

Order (Oymin Chin, J.), dated August 21, 2008, reversed, with $10 costs, tenant's cross motion denied, petition reinstated, and matter remanded for further proceedings, including consideration of landlord's motion.

Landlord's notice of termination alleged, inter alia, that on October 7, 2004 and again on March 13, 2008, tenant caused "mattress" fires in his apartment, each requiring Fire Department intervention, and, further, that "[o]ver the last several years," neighboring residents have complained about "foul odors" emanating from tenant's apartment, including "the odor of decaying materials". Such allegations describe a nuisance in violation of Rent Stabilization Code § 2524.3(b)(see Domen Holding Co. v Aranovich, 1 NY3d 117, 124-125 [2003]) with sufficient detail to have allowed tenant to prepare a defense (see Pinehurst Constr. Corp. v Schlesinger, 38 AD3d 474, 475 [2007]).

Nor is landlord now precluded from relying upon the 2004 fire as a basis for its present eviction claim, by virtue of the parties' March 2, 2005 stipulation settling an earlier nuisance holdover proceeding initially commenced by landlord prior to the occurrence of that fire. Preclusive effect will only be given to matters "actually litigated,
squarely addressed and specifically decided" (Ross v Medical Liab. Mut. Ins. Co., 75 NY2d 825, 826 [1990]) in a prior action or proceeding. An issue is not actually litigated if there has been a failure to place a matter in issue by proper pleading or even because of a stipulation" (Kaufman v Eli Lilly & Co., 65 NY2d 449, 457 [1985]). Here, the issue of tenant's culpability for the 2004 [*2]fire was never determined in the earlier eviction proceeding, the stipulation settling which specifically provided that neither party was admitting or denying any of the petition's allegations.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 31, 2009