Frawley Plaza, Inc. v Coleman

[*1] Frawley Plaza, Inc. v Coleman 2008 NY Slip Op 52280(U) [21 Misc 3d 1130(A)] Decided on November 14, 2008 Civil Court Of The City Of New York, New York County Lebovits, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 14, 2008
Civil Court of the City of New York, New York County

Frawley Plaza, Inc., Petitioner,

against

Cynthia Coleman, Respondent.



069451/08



Gutman, Mintz, Baker & Sonnenfeldt, P.C., New York City, (Gary Friedman and Angelo Ficarrotta), for petitioner.

The Legal Aid Society, New York City (Cristina Romero of counsel), for respondent.

Gerald Lebovits, J.

Respondent's motion to dismiss is granted. In this nuisance holdover proceeding, the petition alleges only one instance of one nuisance — that respondent "thr[ew] garbage and debris out of [her] apartment onto the building property and on the exterior perimeter of the building."

Under the Rent Stabilization Code, tenants may be removed if they commit or permit a nuisance in the subject premises. (RSC § 2424.3 [b].) A nuisance occurs when a "tenant engages in a persistent and continuing course of conduct evincing an . . . unreasonable or unlawful use of the property to the annoyance . . . or damage of others, the primary purpose of which is intended to harass the owner or other tenants . . . by interfering substantially with their comfort or safety." (Id.; accord Domen Holding Co. v Aranovich, 1 NY3d 117, 124 [2003] ["Nuisance imports a continuous invasion of rights — a pattern of continuity or recurrence of objectionable conduct.'"], quoting Frank v Park Summit Realty Corp., 175 AD2d 33, 34 [1st Dept 1991], mod on other grounds 79 NY2d 789 [1991].)

Petitioner cites 160 West 118th Street Corp. v Gray (7 Misc 3d 1016A, 2004 NY Slip Op 51881U at *1 [Hous Part, Civ Ct, NY County 2004]) for the proposition that an eviction is permissible after only one occurrence of one nuisance. This court respectfully declines to follow Gray. In this court's opinion, the Court of Appeals's decision in Domen conflicts with Gray.

This opinion is the court's decision and order.

Dated: November 14, 2008

J.H.C.