323 3rd St. LLC v Ortiz

[*1] 323 3rd St. LLC v Ortiz 2006 NY Slip Op 52268(U) [13 Misc 3d 141(A)] Decided on November 17, 2006 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 17, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2005-1363 K C.

323 3rd Street LLC, Appellant,

against

Anthony Ortiz, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Anthony J. Fiorella, Jr., J.), dated June 27, 2005. The order granted tenant's motion to dismiss the petition in a holdover summary proceeding.

Order reversed without costs and tenant's motion to dismiss the petition denied with leave to tenant to serve and file an answer within 14 days of the date of the order entered hereon.

In this nuisance holdover proceeding, the petition alleges that the apartment is rent stabilized. Tenant moved to dismiss, arguing that the apartment is in fact rent controlled and that landlord failed to serve a copy of the termination notice upon the
Division of Housing and Community Renewal as required by New York City Rent and Eviction Regulations (9 NYCRR) § 2204.3. Tenant also claimed, inter alia, that even if the apartment is rent stabilized, the allegations of the termination notice do not support a nuisance claim under Rent Stabilization Code (RSC) (9 NYCRR) § 2524.3 (b). In opposition, landlord argued that tenant failed to establish that he was rent controlled and that the allegations of the termination notice were sufficient to state a claim under RSC § 2524.3 (b). The court below, ruling that tenant failed to establish that he was rent controlled but that the termination notice was insufficient, granted tenant's motion to dismiss.

In our view, tenant's motion should have been denied. The court below properly determined that tenant's assertion that he was rent controlled was insufficiently proven, and [*2]tenant's claim to such status merely raised an issue for trial. However, contrary to the court's ruling, the termination notice was not insufficient. The test for determining the sufficiency of a termination notice is whether it is "reasonable ... in view of [the] attendant circumstances" (Hughes v Lenox Hill Hosp., 226 AD2d 4, 17 [1996]; see Fanny Grunberg & Assoc. v Hyatt, 193 Misc 2d 797 [App Term, 1st Dept 2002]). Here, the notice alleged, inter alia, that tenant had substantially damaged the housing accommodation in that he had removed, rendered unusable, and disposed of four brand new kitchen base cabinets, four brand new kitchen wall cabinets and a new kitchen plywood and linoleum tile floor. This notice adequately apprised tenant of the grounds upon which the termination was based (see Domen Holding Co. v Aranovich, 1 NY2d 117, 124-125 [2003]), and its fact-specific allegations, if proven, are sufficient to establish that tenant "is maliciously, or by reason of gross negligence substantially damaging the housing accommodation" (RSC § 2524.3 [b]). Tenant's claim that it was landlord's workers who removed the cabinets and damaged the floor merely presented an issue for trial and did not undermine the sufficiency of the notice. Accordingly, tenant's motion to dismiss is denied.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.

Decision Date: November 17, 2006