160 W. 118th St. Corp. v Gray
Annotate this CaseDecided on November 26, 2004
Civil Court of the City of New York, New York County
160 WEST 118TH STREET CORP., Petitioner(s)
against
MARY GRAY, "John and Jane Doe", Respondent(s)
81483/2004
John S. Lansden, J.
In this holdover proceeding, Petitioner seeks possession of the premises on the allegation that Respondent has engaged in conduct that has created a nuisance to the landlord and other tenants. At the core of Petitioner's claim is an incident in which Respondent shot her son while in the subject apartment. Respondent now moves to dismiss the petition pursuant to CPLR §3211(a)(2) and (7) for failure to state cause of action.
The notice of termination to support its claim of nuisance states in part:
You have engaged in anti-social, disruptive, destructive, dangerous and/or illegal behavior in the building in violation of Section 26-408 of the New York City Rent and Eviction Regulations, in that, you, Mary Gray, were in possession of an unlicensed handgun on November 8, 2003. You did shoot an occupant, your son, in the apartment. You were subsequently arrested by the New York City Police Departments and charged with assault and criminal possession of a weapon. Upon information and belief, the charges are currently pending against you. This type of illegal and dangerous conduct cannot be tolerated by the landlord. This type of nuisance conduct is incurable.
Respondent is 75 years old and has been the rent controlled tenant of the subject unit for approximately 50 years. It is undisputed that on November 8, 2003 she shot her son. According to Respondent, her son has a drug problem and in defense to the incident she states "I was afraid that my son intended to kill or seriously hurt me and I defended myself against him." [*2]Respondent alleges that she no longer has a gun in the premises and that she has never had any problems with her neighbors. Respondent argues that this event amounts to nothing more than a terrible isolated family incident and does not, in itself, constitute a nuisance.
Petitioner's agent, Scott Metzner, paints an entirely different picture as to Respondent's tenancy. In his affidavit he states that Respondent has frequently threatened his life and that she has "repeatedly engaged in an unabated course of conduct which poses a grievous, imminent and serious threat of harm to the petitioner's other tenants and employees." Petitioner argues that Respondent's recent shooting is just a manifestation of her continual harassment and abuse of others at the premises.
NYC Admin. Code §26-408(a)(2) provides that a landlord may seek to recover possession when a tenant is committing a nuisance or engages in conduct "as to interfere substantially with the comfort and safety of the landlord or of other tenants or occupants." Domen Holding Co. v. Aranovich, 1 NY3rd 117 (2003). Courts have generally held that to make out a claim of nuisance there should be more than one objectionable incident alleged. See Goodhue Residential Co. v. Lazansky, NYLJ 1/20/2004, p.18. However, there is no strict quantitative test as to how many incidents warrants a claim of nuisance. Instead the Court must weigh both the quantitative and qualitative aspects under the specific set of facts to determine if that threshold has been met. See, Metroplitan Life Insurance Co. v. Moldoff, 187 Misc 2d 458 (AT 1st Dept 1946) aff'd 272 AD2d 1039 (1st Dept 1947).
As this is a motion to dismiss pursuant to CPLR §3211, the Court need not make a factual determination or determine the credibility of the parties but need only determine whether a cause of action has been set forth after viewing the pleadings in the light most favorable to the non moving party. Friedman v. Friedman, 141 AD2d 401 (1st Dept 1988). In doing so, the Court finds that the allegations as set forth in the notice of termination are so serious in nature that the one incident of shooting someone at the premises may rise to the level of a nuisance as set forth in NYC Admin. Code §26-408(a)(2). Furthermore, the consequences of such an incident combined with the alleged harassing behavior could be interpreted as an ongoing fear of safety by the fellow occupants. Also, the possession of an illegal firearm, unless alleged to have been purchased and maintained on the day of the incident may represent an ongoing pattern of objectionable behavior.
Accordingly, Respondent's motion to dismiss is denied. Petitioner has clearly laid out a legally cognizable claim of nuisance. This holding does not address the likelihood of success but merely recognizes that a cause of action has been set forth and that this matter is ripe for trial.
This matter is restored to Part H at 9:30 AM on December 20, 2004 for trial.
The foregoing constitutes the decision and order of this Court, copies of which are being mailed to counsel for both parties.
Dated: November 26, 2004
New York, New York John S. Lansden, JHC
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