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711 SEAGIRT AVENUE HOLDINGS LLC v. “John Doe” and/or “Jane Doe,” Respondent-Undertenants. (2019)

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Civil Court, City of New York.

711 SEAGIRT AVENUE HOLDINGS, LLC, Petitioner-Landlord, v. Dorothea HARRIS, Respondent-Tenant, “John Doe” and/or “Jane Doe,” Respondent-Undertenants.

L & T 60144/18

Decided: March 06, 2019

Petitioner's attorney: Horing Welikson & Rosen, P.C., 11 Hillside Avenue, Williston Park, NY 11596 Respondent's attorney: Legal Services NYC — QUEENS, Attn: Alex Jacobs, Esq., 89-00 Sutphin Boulevard, 5th Floor, Jamaica, NY 11435

Recitation, as required by CPLR section 2219(a), of the papers considered in the review of this motion to dismiss:

Papers Numbered

Notice of motion, affirmations and exhibits annexed 1

Affirmation in opposition 2

Affirmation in reply 3

Petitioner commenced this summary holdover proceeding alleging respondent was committing a nuisance at 711B Seagirt Avenue, Apt. 19B, Far Rockaway, NY 11691 (the “subject premises”). The subject premises are subject to the Rent Stabilization Law of 1969. (See petition, Para. 6). Respondent, Dorothea Harris, retained counsel and moves to dismiss for failure to state a cause of action. (CPLR 3211(a)(7).) Respondent's motion also seeks, in the alternative, leave to interpose an answer (CPLR 3211(f) ) and to conduct discovery (CPLR 408).

As an initial matter, petitioner argues that respondent's motion was untimely. Petitioner correctly notes that a motion to dismiss must be made before the date upon which a responsive pleading is required. CPLR 3211(e). However, petitioner fails to state when the responsive pleading was due. Petitioner states that respondent was served with the pleadings on May 7, 2018 and filed the motion to dismiss “five (5) months after her time to file such a motion has expired” (Affidavit of M. Levin ¶ 46). Petitioner argues that respondent's time to answer expired pursuant to CPLR 2004. However, CPLR 2004 deals with extensions of time and does not set forth a timetable for a responsive pleading. CPLR 3012 addresses service of pleadings and states: “Service of an answer or reply shall be made within twenty days after service of the pleading to which it responds.” CPLR 3012(a). While respondent did not serve the motion to dismiss within twenty days of service of the pleadings, CPLR 3012(d) and CPLR 2004 give the court authority to extend the time for pleading. CPLR 3012(d) states:

Extension of time to appear or plead. Upon the application of a party, the court may extend the time to appear or plead, or compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for delay or default.

CPLR 2004 states:

Except where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed.

This proceeding was initially on the court's calendar on May 16, 2018. It was adjourned several times for respondent to seek an attorney. It was also adjourned at least once at petitioner's request due to a religious holiday. Respondent's counsel filed a notice of appearance on October 30, 2018 and filed the instant motion on the same day. Given the attendant circumstances, respondent's delay in filing this motion was not unreasonable. Moreover, petitioner entered into two stipulations agreeing to adjourn the case with a motion schedule. The first stipulation dated October 30, 2018 gave petitioner until November 14, 2018 to file opposition to respondent's motion and adjourned the case to November 27, 2018. On November 27, 2018, the parties agreed to adjourn to January 3, 2019 and gave petitioner an extension of time to file opposition to respondent's motion. By entering into these two stipulations, petitioner waived its right to object to the timeliness of respondent's motion.

On a motion made pursuant to CPLR 3211(a)(7) for failure to state a cause of action, “the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory.” (Siracusa v. Sager, 105 AD3d 937, 938 [2nd Dept 2013] quoting Breytman v. Olinville Realty, LLC, 54 AD3d 703, 703—704.)

In reviewing the sufficiency of the notice of termination, the law requires that a predicate notice be reasonable under the attendant circumstances. (Hughes v. Lenox Hill Hospital, 226 AD2d 4, 18 [1st Dept. 1996].) In particular, RSC 2524.2(b) requires the termination notice to state “the facts necessary to establish the existence” of a ground for eviction. The notice must offer specific facts so as to provide the tenants with sufficient notice of the case against them. (Kaycee West 113th Street Corp. v. Diakoff. 160 AD2d 573, 574 [1st Dept. 1990] ). While dates and times are not required in a predicate notice, it is relevant to the court's inquiry as to the sufficiency of the notice. (Domen Holding Co v. Aranovich, 1 NY3d 117, 124 [2003].).

Under the RSC, a landlord may evict a tenant who:

is committing or permitting a nuisance in such housing accommodation or the building containing such housing accommodation; or is maliciously, or by reason of gross negligence, substantially damaging the housing accommodation; or the tenant engages in a persistent and continuing course of conduct evidencing an unwarrantable, unreasonable or unlawful use of the property to the annoyance, inconvenience, discomfort or damage of others, the primary purpose of which is intended to harass the owner or other tenants or occupants of the same or an adjacent building or structure by interfering substantially with their comfort or safety. RSC § 2524.3(b).

A nuisance is a use of property that interferes with another's use and enjoyment of the land. (Domen Holding v. Aranovich, 1 NY3d 117 [2003].) The phrase “use and enjoyment” entails the pleasure and comfort derived from occupying land free from annoyance. (Id.) Not every annoyance or interference constitutes a nuisance, (Id., citing 2 Dolan, Rasch's Landlord and Tenant-Summary Proceedings § 30:60, at 465 [4th ed.] ), nor are “things merely disagreeable, which simply displease the eye, or offend the taste, or shock an oversensitive or fastidious nature, no matter how irritating or unpleasant.” (Metropolitan Life Insurance v. Moldoff, 187 Misc 458 [App Term, 1st Dept 1946], aff'd 272 AD 1039 [1st Dept 1947], quoting Demarest v. Hardham, 34 NJ Eq. 469, 474.) Rather, the condition must threaten the comfort and safety of others in the premises, (Frank v. Park Summit Realty, 175 AD2d 33 [1st Dept 1991] ), and be continuous or recurring. (Id.; Domen Holding v. Aranovich, supra.) There is no general rule regarding what conditions constitute a nuisance; each alleged annoyance must be examined on its own set of facts. (Metropolitan Life Insurance v. Moldoff, 187 Misc 458, supra.) Also, a nuisance is a “continuous invasion of rights-a pattern of continuity or recurrence of objectionable conduct.” (Domen Holding Co. v. Aranovich, supra.)

The subject predicate notice fails to allege a nuisance. The Ten (10) Day Notice of Termination provides the following grounds to establish a cause of action for nuisance:

You were arrested on January 26, 2018 at 3:45pm in the subject building. You were charged with Violation of 1) PL 120.00 01 MA: Assault with intent to cause Physical Injury and 2) PL 240.26 01 V: Harassment in the 2nd degree: Physical Contact.

Other residents consider you a threatening presence in the subject building.

Management has received numerous complaints regarding your behavior from other residents of the subject building.

These incidents adversely effect the quality of life in the subject building.

The HAP contract allows for the termination of the tenancy if you are charged with a crime. Your lease may be terminated regardless of whether or not you have been convicted of the crime.

Items 2, 4 and 5 listed above are not facts supporting an allegation of nuisance. They are opinion statements or conclusions of law that do not provide respondent with any facts that would provide respondent with notice of the allegations against her. Item 3 is a generic statement that petitioner has received complaints regarding respondent's behavior from other residents of the building. This item does not provide any names, dates, times or details of the nature or severity of the behavior that petitioner is alleging. This leaves the predicate notice with one specific incident where respondent was arrested at the premises. Item 1 does not state whether the behavior that resulted in respondent's arrest was directed at another resident of the building or building employees. Based on the above, the allegations in the predicate notice fail to establish the “pattern of continuity or recurrence of objectionable conduct” required by Domen v. Aronovich.

Petitioner argues that one dangerous act is enough to substantiate a claim of nuisance. In support of this proposition, petitioner cites Stratton v. Fenner, 211 AD2d 559 (App. Div, 1st Dept. 1995). This case does not provide support for petitioner's argument. Stratton v. Fenner involved a “Collyer” condition that was an ongoing course of conduct rather than a single incident. Likewise, 177 East 90th St. Co. v. Niemela, 115 Misc 2d 189 (Civ. Ct. NY Co. 1982), is inapposite as that case involved two incidents of objectionable conduct, while the instant predicate only identifies one incident. Finally, petitioner cites 160 West 118th Street Corp. v. Gray, 7 Misc 3d 1016(A)(Civ. Ct. NY Co. 2004). Gray involved a single incident of a shooting in an apartment and stated that the court must weigh both the quantitative and qualitative aspects of the alleged conduct in determining whether petitioner has stated a cause of action for nuisance. Qualitatively, the one incident cited in the instant case is not remotely similar to the incident in Gray. A violation of New York Penal Code 120.00 is a Class A misdemeanor that carries a maximum sentence of imprisonment of one year. A violation of New York Penal Code 240.26 is a violation that carries a maximum sentence of 15 days. Thus, assuming arguendo that one incident could rise to the level of a nuisance, petitioner has failed to establish such grounds here.

Based on the foregoing, the motion to dismiss is granted; the petition is dismissed without prejudice. Respondent's motion is denied to the extent of denying leave to file and answer and to conduct discovery as moot.

This constitutes the decision and order of this court.

Joel R. Kullas, J.

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