HOLLIS PARTNERS LLC v. ARTIS (2021)

ORDERED that the order is reversed, without costs, and tenant's motion to dismiss the petition is granted.

In this residential holdover proceeding, tenant appeals from an order which denied her motion to dismiss the petition on the ground that the notice of termination, which alleged eight separate instances of nuisance (see Rent Stabilization Code [RSC] [9 NYCRR] § 2524.3 [b]), was defective.

A notice of termination must “adequately apprise [the] tenant of the grounds upon which the termination was based” (323 3rd St. LLC v Ortiz, 13 Misc 3d 141[A], 2006 NY Slip Op 52268[U], *2 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]; see Peng v Van Zandt, 14 Misc 3d 138[A], 2007 NY Slip Op 50272[U] [App Term, 1st Dept 2007]). The “test for determining the sufficiency of a termination notice is whether it is reasonable ․ in view of [the] attendant circumstances” (323 3rd St. LLC v Ortiz, 13 Misc 3d 141[A], 2006 NY Slip Op 52268[U], *2 [internal quotation marks omitted]).

We find that the termination notice upon which this proceeding is based was defective to allege a nuisance (see RSC § 2524.3 [b]; see also Domen Holding Co. v Aranovich, 1 NY3d 117, 123 [2003]; Frank v Park Summit Realty Corp., 175 AD2d 33, 35 [1991], mod on other grounds 79 NY2d 789 [1991]; Giga Greenpoint Realty, LLC v Mounier, 61 Misc 3d 135[A], 2018 NY Slip Op 51510[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Montemuino v Gelber, 33 Misc 3d 133[A], 2011 NY Slip Op 51995[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). We note that, to the extent landlord's overcrowding allegation may have been based, not upon RSC § 2524.3 (b) (nuisance) as indicated in the notice of termination, but rather upon RSC § 2524.3 (a) (breach of a substantial obligation of the tenancy) or RSC § 2524.3 (c) (permitting the termination of the tenancy where occupancy is illegal, subjecting landlord to civil or criminal penalties), the notice does not sufficiently allege those grounds for termination either (see 321 Bay Ridge Co., Inc. v Cordova, 68 Misc 3d 130[A], 2020 NY Slip Op 50954[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Brooklyn Home for Aged People Hous. Dev. Fund Co. v Selby, 32 Misc 3d 130[A], 2011 NY Slip Op 51314[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Landlord is “bound by the notice served” (Singh v Ramirez, 20 Misc 3d 142[A], 2008 NY Slip Op 51680[U], * 2 [App Term, 2d Dept, 2d & 11th Jud Dists 2008] [internal quotation marks and citation omitted]), which is not subject to amendment (see Chinatown Apts. v Chu Cho Lam, 51 NY2d 786, 788 [1980]). As none of the allegations in landlord's notice of termination sufficiently support landlord's claim of nuisance, the petition must be dismissed.

Accordingly, the order is reversed and tenant's motion to dismiss the petition is granted.

TOUSSAINT, J.P., WESTON and ELLIOT, JJ., concur.