772 E. 168 St. LLC v Holmes

[*1] 772 E. 168 St. LLC v Holmes 2018 NY Slip Op 51381(U) Decided on October 1, 2018 Civil Court Of The City Of New York, Bronx County Bacdayan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 1, 2018
Civil Court of the City of New York, Bronx County

772 East 168 Street LLC, Petitioner,

against

Elizabeth Holmes, Respondent, and THE NEW YORK CITY HOUSING AUTHORITY, Co-Respondent.



02966/2018



Charles W. McMellon, Esq., for the Petitioner

Bronx Legal Services, Inc., by Martha Kellog, Esq., for the Respondent
Karen May Bacdayan, J.

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

Papers/Numbered

Notice of Motion and Affidavits Annexed 1

Affirmation in Opposition 2

Affirmation in Reply 3

Exhibits 4

After oral argument and upon the foregoing cited papers, the decision and order on this motion is as follows:

[*2]BACKGROUND

This is a holdover proceeding brought against a Respondent who lives in supported housing. As stated in its Notice of Termination, Petitioner's mission is to "provide housing and services to people with psychiatric disabilities." The Notice of Termination alleges that Respondent has violated a substantial obligation of her tenancy and created a substantial nuisance in the premises by failing to provide access for repairs on multiple occasions between May 4, 2017 and April 24, 2018, harassing the Petitioner by making numerous calls to Housing Preservation and Development (HPD) through the 311 phone service, engaging in "outrageous, harassing, and unreasonable behavior toward staff and the subject building," and intentionally damaging and re-damaging the apartment after repairs are made. Petitioner further alleges that Respondent's failure to provide access resulted in the termination of her New York City Housing Authority (NYCHA) Section 8 Housing Choice Voucher Program (Section 8) subsidy due to Housing Quality Standards (HQS) violations.

Respondent moves to dismiss the nuisance allegations pursuant to CPLR 3211 (a) (1), 3211 (a) (2) and 3211 (a) (7) arguing that the notices are equivocal, lacking in specificity, and Petitioner has failed to state a cause of action for nuisance. Respondent moves on the same grounds to dismiss the breach of lease allegations on the basis that Respondent was not served with a required notice to cure. Petitioner opposes on the bases that, under the circumstances, no notice to cure was required, the notices are not equivocal, the notices meet the standard for specificity, and a valid cause of action for nuisance has been pled.

APPLICABLE LAW

A notice to terminate a rent-stabilized tenancy "shall state the ground . . . upon which the owner relies for . . . eviction of the tenant," and must "state . . . the facts necessary to establish the existence of such ground." (Rent Stabilization Code [9 NYCRR] § 2524.2 [b].) Notices that do not allow a tenant to prepare a defense because they are broad, conclusory, and/or unparticularized have been considered inadequate by the appellate courts of this Department. Berkeley Assoc. Co. v Camlakides, 173 AD2d 193 [1st Dept 1991], affd 78 NY2d 1098 [1991]; see 69 E.M. LLC v. Mejia, 49 Misc 3d 152[A], 2015 NY Slip Op 51765[U] [App Term, 1st Dept 2015] [finding allegations of undefined disruptive, destructive behavior, damage to apartment and indeterminate fire hazard too broad and unparticularized satisfy specificity requirement of RSC 2524.2 [b] or to allow tenant to formulate a defense].)

A Notice of Termination "must be clear, unambiguous and unequivocal in order to serve as the catalyst which terminates a leasehold." (Ellivkroy Realty Corp. v HDP 86 Sponsor Corp., 162 AD2d 238, 238 [1st Dept 1990] [holding that a notice made pursuant to a lease provision which was unclear as to whether landlord sought to commence formal termination or was simply a demand to cure a default in payment was not a valid notice of termination upon with possession may be awarded].)

On a motion to dismiss 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 and determine only whether the facts as alleged fit within any cognizable [*3]legal theory. (Leon v Martinez, 84 NY2d 83, 87 [1994]; Guggenheimer v Ginzburg (43 NY2d 268, 275, 401 NYS2d 182, 185 [1977] ["[T]he sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail"].)

Courts have defined a nuisance as a "continuous invasion of rights . . . a pattern of continuity or recurrence of objectionable conduct." (Domen Holding Co. v Aranovich, 1 NY3d 117, 124 [2003] [internal quotation marks omitted] citing Frank v Park Summit Realty Corp, 175 AD2d 33, 34 [1st Dept 1991].) In order to establish whether certain behavior is so egregious as to rise to the level of nuisance, the court must weigh the quantitative and qualitative aspects under a specific set of facts to determine whether a nuisance occurred. (Metropolitan Life Ins. Co. v Moldoff, 187 Misc 458, 459 [App Term, 1st Dept 1946] affd 272 AD 1039 [1st Dept 1947].) Extremely violent behavior, even if not continuous, can be considered a nuisance. (160 W. 118th St. Corp. v Gray, 7 Misc 3d 1016[A], Ct.), 2004 NY Slip Op 51881[U] [Civ Ct, NY County 2004] [holding that a single incident of gun violence states a claim for nuisance].) However, isolated incidents of a lesser degree where there is no continuing pattern do not sound in nuisance. (See Tsangarinos v Attaway, 43 Misc 3d 142[A], 2014 NY Slip Op 50848[U] [App Term, 1st Dept 2014] [upholding the trial court's determination that two altercations over five years were not shown to have substantially threatened the comfort and safety of others at the building premises]; Madison Cent. Corp. v Weider, 91 NYS2d 437, 438 [App Term, 1st Dept 1949] [finding a tenant's single act of kicking and scratching an elevator door did not constitute a nuisance]; Pelham 1130 LLC v Cause, NYLJ, Jul. 26, 2017 at 32 [Civ Ct, Bx County 2017] [finding a single instance of tenant striking building employee with a screwdriver insufficient to maintain nuisance proceeding]; London Leasing v Borrero, 60 Misc 3d 120[A], 2018 NY Slip Op 50966[U] [finding that a single instance wherein a tenant's guest kicked a glass door out of frustration and broke the glass causing damage to the property did not constitute nuisance] [Civ Ct, Queens County 2018].)

To constitute a cause of action for nuisance behavior, the tenant's conduct must affect other residents. (Matter of Sumet I Assocs., LP v Irizarry, 103 AD3d 653, 654 [2d Dept 2013] [holding that a holdover petition was properly dismissed where the landlord failed to demonstrate that the criminal activity of vandalizing walls in common area threatened the health, safety, or right to peaceful enjoyment of the premises by other residents]; Roxborough Apts. Corp. v Kalish, 22 Misc 3d 130[A], 2009 NY Slip Op 50127[U] [App Term, 1st Dept 2009] ["In the absence of any claim or showing that tenant's alleged refusal to allow the landlord access to the subject apartment to remedy the lead paint condition therein in any way affected other building residents, landlord failed to state an actionable claim for nuisance"]; see generally Rent Stabilization Code [9 NYCRR] § 2524.3 [b].)

THE ALLEGATIONS

Failure to Provide Access — RSC 2524.3(e) and RSC 2524.3(a)

Petitioner is seeking Respondent's eviction in part for failure to provide access to her apartment pursuant to section 2524.3 (e) of the Rent Stabilization Code, which provides for an [*4]action to remove a rent stabilized tenant from possession of the premises where it is established that "[t]he tenant has unreasonably refused the owner access to the housing accommodation for the purpose of making necessary repairs or improvements required by law . . . ."

Petitioner claims that Respondent has created an incurable nuisance in the premises by continually failing to provide access to her apartment for Petitioner to make repairs thereby allegedly causing the termination of her Section 8 subsidy.[FN1] While Petitioner provides numerous specific dates upon which Respondent allegedly failed to provide access, it does not include details regarding how this behavior has affected the right to peaceful enjoyment of the premises by other residents, or their health, safety, and welfare. Petitioner states in a broad and conclusory manner that "failure to provide access for repairs substantially interferes with all tenant's (sic) welfare and safety," and "substantially interfere[s] with the surround tenant's (sic) quiet and peaceful enjoyment of their apartments." Petitioner provides no details or any other specific allegations regarding how Respondent's failure to provide access to her own apartment has adversely affected other tenants. Similarly, Petitioner states, without further explanation, that Respondent's alleged failure to provide access "disrupts the livability of the building and interferes with management's duty to maintain standards of health, welfare and safety for other tenants," and "interferes [with] and jeopardizes the mission of the landlord." In such broad, unparticularized and conclusory form, the predicate notice is insufficiently detailed and does not satisfy the specificity requirement of section 2524.3 (b) of the Rent Stabilization Code. (Camlakides, 173 AD2d 193). Moreover, by failing to demonstrate that Respondent is affecting the health, welfare and safety of other residents, the Notice of Termination does not plead an essential element of a cause of action for nuisance. (Sumet I Assocs., LP, 103 AD3d at 654; Roxborough Apts. Corp., 2009 NY Slip Op 50127[U].)

Petitioner also states that, based on its experience with Respondent, it has determined that it would not have been "effective or practical" to have served Respondent with a notice to cure. Petitioner is correct that the plain language of RSC 2524.3 (e) does not require a notice to cure, but does not cite any cases in which a tenant was not given a notice to cure an alleged failure to provide access. Petitioner also argues that Respondent was on notice to cure the alleged lack of access because of a prior, discontinued nuisance proceeding. However, a predicate notice from a prior proceeding cannot be revived to support a subsequent proceeding. (Kaycee W. 113th St. Corp. v Diakoff, 160 AD2d 573, 573 [1990].)

To the extent that Petitioner claims that Respondent's failure to provide access is a breach of a substantial obligation of the tenancy of the kind that allows it to dispense with a notice to cure under section 2524.3 (a) of the Rent Stabilization Code (because Respondent has inflicted "serious and substantial injury upon [Petitioner] within the three-month period immediately prior to the commencement of the proceeding"), Petitioner has not met the requirements of the Code. Petitioner points to only one incident in the three-month period prior to service of the Notice of Termination which occurred on April 18, 2018 when Respondent allegedly failed to provide [*5]access for unspecified repairs. Petitioner does not expand on how this singular incident inflicted "serious and substantial injury" upon it.[FN2]

Intentional Damage to Apartment and Outrageous Behavior — RSC 2524.3 (b)

Petitioner further alleges that Respondent has created a nuisance by engaging in "outrageous, unreasonable, and harassing behavior towards staff" in the building and causing "intentional damage to the apartment." Petitioner makes no specific factual allegations as to when and how often these alleged incidents occurred, thereby failing to detail "a pattern of continuity or recurrence of objectionable conduct," an essential element of the nuisance cause of action. (Domen Holding Co., 1 NY3d at 124; Frank v Park Summit Realty Corp, 175 AD2d 33, 34 [1st Dept 1991].). Petitioner likewise makes no attempt to describe the alleged damage or outrageous conduct. In such broad and unparticularized form, this allegation does not satisfy the specificity requirement of RSC 2524.2 (b), nor does it enable Respondent to formulate a defense. (69 E.M. LLC, 2015 NY Slip Op 51765[U].)

Harassment of Petitioner — RSC 2524.3 (b)

To the extent that Petitioner claims that Respondent's behavior is intended to harass Petitioner, this cause of action is also dismissed. Petitioner alleges that from May 2017 through May 2018, Respondent submitted a total number of 364 complaints to The Department of HPD by calling 311. In its Reply papers, Respondent clarifies that this allegation is misleading because there were only 49 actual calls alleging basically the same 7-8 violations each time. (affirmation of respondent's attorney at 3, FN1.) This was not disputed at oral argument. Petitioner does not explain how these calls amount to behavior "the primary purpose of which is intended to harass the owner or other building tenants." (Rent Stabilization Code [9 NYCRR] § 2524.3 [b].) Regardless, section 2524.3 (b) of the Code provides that "[t]he lawful exercise by a tenant of any rights pursuant to any law or regulation relating to occupancy of a housing accommodation, including the RSL or this Code, shall not be deemed an act of harassment or [*6]other ground for eviction pursuant to this subdivision." (See also Real Property Law § 223-b [a landlord shall not serve a tenant with a notice to quit in retaliation for a tenant's "good faith complaint . . . to a governmental authority of the landlord's alleged violation of any health or safety law, regulation, code, or ordinance, or any law or regulation which has as its objective the regulation of premises used for dwelling purposes"]; see generally Cruz v Davis, 20 Misc 3d 1135[A], 2008 NY Slip Op 51740[U], *3 [Civ Ct, NY County 2008] [nuisance holdover proceeding in which the court stated in dicta that tenants cannot "be evicted for threatening to exercise their First Amendment right to contact government officials and agencies about plausibly legitimate matters"].)

CONCLUSION

For the foregoing reasons the Petitioner has failed to satisfy the specificity requirement for a notice served pursuant to section 2524.2 (b) of the Rent Stabilization Code, and has failed to state a cause of action for nuisance behavior. Accordingly, the Petition is dismissed. This constitutes the Decision and Order of this Court.

Dated: October 1, 2018

Bronx, New York

_____________________________

HON. KAREN MAY BACDAYAN

Judge, Housing Part Footnotes

Footnote 1:Neither in its opposition papers nor at oral argument was Petitioner able to point to a law or lease provision that requires Respondent to maintain or reinstate her Section 8 subsidy. The Court finds that Petitioner has not pled a valid cause of action for termination of Respondent's tenancy for failure to maintain or reinstate her Section 8 subsidy.

Footnote 2:Moreover, the predicate notice is impermissibly equivocal as it relates to Respondent's alleged incurable failure to provide reasonable access to her apartment which allegedly resulted in the termination of her Section 8 subsidy. In its Notice of Termination, Petitioner demands that Respondent "must afford reasonable access to her apartment," a statement that resonates as a request to cure her behavior. Petitioner also states that Respondent "must reinstate [her] NYCHA Section 8 payments with the landlord." As with the demand for reasonable access to the apartment, this requirement resonates as a request to cure Respondent's behavior and makes the Notice of Termination equivocal. As in Ellivkroy Realty Corp. v. HDP 86 Sponsor Corp., (162 AD2d 238 [1st Dept 1990]), the termination is not clear whether Petitioner seeks to commence a termination of the tenancy, or is simply a demand to cure a default. Because of this ambiguity, the notice is rendered impermissibly vague.