Zagorski v Koenigsamen

[*1] Zagorski v Koenigsamen 2019 NY Slip Op 51203(U) Decided on June 24, 2019 Civil Court Of The City Of New York, Kings County Harris, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 24, 2019
Civil Court of the City of New York, Kings County

Michael Zagorski, Petitioner,

against

Evelyn Koenigsamen, Respondent, Michael Koenigsamen a/k/a Mark Koenigsamen, "John Doe" and "Jane Doe," Respondents-Undertenants.



60288/19



For Petitioner:

The Price Law Firm, PLLC

1115 Broadway, Suite 1053

New York, N.Y. 10010

(212) 675-1125

For Respondent:

Brooklyn, Legal Services Corporation A

Attn: Samuel H. Chiera, Esq.

260 Broadway, 2nd floor

Brooklyn, New York 11211

(718) 487-2300
David A. Harris, J.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of respondents' motion for dismissal and summary judgment

Papers Numbered

Notice of motion & Affidavits Annexed 1

Order to Show Cause and Affidavits Annexed

Answering Affidavits 2

Replying Affidavits 3

Exhibits

Other

Upon the foregoing cited papers, the Decision and Order on this Motion is as follows:

After the expiration of a Ten (10) Notice of Termination (Notice Of Termination), served subsequent to the expiration of a Ten (10) Day Notice to Cure (Notice To Cure), petitioner commenced this summary proceeding seeking to recover possession of apartment 1R (the "Apartment") in the building located at 183 Guernsey Street, in Brooklyn (the "Building"). The Notice To Cure is premised on the assertion of both violation of a substantial obligation of tenancy and nuisance, as does the Notice Of Termination.

The proceeding first appeared on the court's calendar on April 2, 2019, at which time respondents appeared by counsel, and was adjourned on consent on both that date and May 8, 2019. In the interim, respondents interposed a written answer on behalf of both Evelyn Koenigsamen and Michael a/k/a Mark Koenigsamen. That answer interposed a general denial, raised objections in point of law as to the sufficiency of the Notice To Cure, and the Notice Of Termination as well as asserting vitiation of the petition through acceptance of rent, and raising an affirmative defense of retaliatory eviction, an affirmative defense to petitioner's claim for use and occupancy of breach of the warranty of habitability, and affirmative defenses and counterclaims alleging discrimination under the New York City Human Rights Law, the New York State Executive Law, and the federal Fair Housing Act. Respondents now move for dismissal and for summary judgment, as well as for trial on the counterclaims.

Respondents' motion is premised on three grounds, asserting that the Notice Of Termination fails to allege objectionable conduct after service of the Notice To Cure, that the allegations of the Notice To Cure lack specificity and are broad and conclusory, and that the Notice Of Termination similarly lacks specificity, is broad and is conclusory.

Specifically, respondents assert that the Notice To Cure, rather than describing objectionable conduct, relies instead on vague, conclusory allegations, that it fails to allege which of the respondents engaged in the conduct, fails to identify the individuals complaining of the conduct and in so doing fails to apprise respondents of what efforts should be made to effect a cure.

Petitioner, in opposition, asserts that the Notice To Cure is more than sufficient to inform respondents of the alleged conduct and to give them an opportunity to cure that conduct. Petitioner notes the variety of incidents alleged to have occurred, further asserts that several specific dates on which incidents are alleged to have occurred are set forth in each of the notices and asserts that the notice identifies an individual at whom the conduct on which the notice is based has been directed.

It has been held that "[a] notice to cure that forms the basis for a petition initiating a holdover proceeding must set forth sufficient facts to establish grounds for the tenant's eviction, and inform the tenant as to how the tenant violated the lease, as well as the conduct required to prevent eviction. A notice to cure is insufficient where it fails to apprise the tenant of the condition that the landlord wishes to have cured or fails to reference the specific section of the lease that addresses the condition," (Westhampton Cabins and Cabanas Owners Corp. v Westhampton Bath and Tennis Club Owners Corp, 62 AD2d 987, 988 [2d Dept 2009][citations omitted]).

The Notice To Cure alleges the violation of a substantial obligation of tenancy through the creation of a nuisance. It sets out, in eighteen bullet points, the assertions underlying the claim. Those points assert violation of paragraph 20, subsection 1 of the lease between the parties, of paragraph 11 of the lease, of paragraph 20, subsection 6 of the lease (the alleged [*2]breach of that section is not, however addressed in the Notice Of Termination, and thus is not a basis upon which this proceeding is premised), and of paragraph 20, subsection 2 of the lease. Neither party annexes respondent Evelyn Koenigsamen's initial lease to the petition; respondents present what is characterized as a renewal lease, commencing October 1, 2001 and ending on September 30, 2003, and the instant motion addresses the references to provisions of the lease set forth in the Notice To Cure as being based on the paragraphs of that lease, as has petitioner. Paragraph 20 of the lease is denominated "Rules," and section 1 provides that "[t]he comfort or rights of other tenants must not be interfered with. This means that annoying sounds, smells and lights are not allowed." Paragraph 20, subsection 2 provides that "[n]othing is allowed on the roof. Nothing may be placed on or attached to fire escapes, sills, windows or exterior walls of the apartment or in the hallways or public areas." subsection 6 of paragraph 20 provides that "[d]ogs, cats or other animals are not allowed in the apartment or building. Paragraph 11 of the lease provides that:

"[l]andlord may enter the Apartment at reasonable hours to repair, inspect, exterminate, install or work on master antennas or other systems or equipment and perform other work that landlord decides is necessary or desirable. At reasonable hours landlord may show the Apartment to possible buyers, lenders or tenants of the entire Building or land. At reasonable hours Landlord may show the Apartment to possible or new tenants during the last 4 months of the term. Entry by landlord must be on reasonable notice except in emergency."

The Notice To Cure includes, among others, the following allegations:

"You constantly assault and harass other tenants in the building as well as agents of the landlord, specifically, Catherine Zagorski, in violation of Paragraph 20, Subsection 1 of the Lease.You will not permit agents of the landlord to enter your apartment to inspect an make necessary repairs in violation of Paragraph 11 of your lease .Your behavior has caused tenants around you to complain to the landlord an request to be moved to another apartment and/or break their lease.You continually smoke in the Subject Unit and in the Subject Premises in direct violation of your lease .Your frequent smoking has vexed and harassed tenants who have reached out to management to complain about you .You have deliberately ignored the notices in the building indicating that the building is a no-smoking building and any smoking in the building is a direct violation of your lease.On January 2, 2019, an agent of the building approached you regarding the smoke. You then became aggressive and engaged in another verbal altercation with the landlord .Your behavior has made other tenants' [sic] fear for their safety and welfare which is a violation of Paragraph 20, Subsection 1 of the Lease .You are engaging in objectionable conduct in that you have created a classic Colyer [sic] situation within the Subject Unit in that you have permitted junk, garbage, newspapers and other chattel to accumulate within the Subject Unit in violation of Paragraph 20, Subsection 1 and Paragraph 20, Subsection 2 of the lease."

Notwithstanding the fact that the petition alleges that Evelyn Koenigsamen is the tenant of the Apartment and that Michael a/k/a Mark Koenigsamen is an undertenant, both the Notice To Cure and the Notice Of Termination are addressed to both of them. Annexed affidavits of [*3]service indicate that each was served on both named respondents. Nowhere does the Notice To Cure specify which respondents is alleged to have engaged in what conduct, or whether petitioner is asserting that both respondents have engaged in the conduct described.

Further, the allegation that respondent or respondents "continually smoke in the subject unit and in the subject premises in direct violation of your lease" fails entirely to specify any clause of the lease that is being violated. Elsewhere in the notice, petitioner avails itself of a variety of adverbs in the Notice To Cure, variously describing conduct as occurring "constantly," "consistently," and "continually." Notably absent from the Notice To Cure, however, is the adverb "specifically," or any synonymous term. The Notice To Cure nowhere identifies anyone who it alleges has complained of the respondents' conduct, asserting instead that "[y]our behavior has caused tenants around you to complain to the landlord," that "[m]ultiple tenants have complained," that "[y]our frequent smoking has vexed and harassed tenants who have reached out to management," that "[t]enants have requested to end their leases early," that "[a]gents of the landlord have witnessed smoke coming from your open door." The language of the Notice To Cure makes clear that petitioner, although in possession of complaints from specific tenants, chose to serve a notice replete with generalizations rather than a notice alleging with specificity the conduct of which it complains.

While the Notice to Cure sets forth, in some instances, the provision of the lease it alleges has been breached, it nowhere designates the provisions of the lease under which it is being issued. Rather, it simply states without articulating a basis for doing so that respondents are "hereby required to cure the aforementioned violations of your tenancy by February 14th, 2019, that being at least ten (10) days after the service of this notice upon you." It has been held that " 'The purpose of a notice to cure is to specifically apprise the tenant of claimed defaults in its obligations under the lease and of the forfeiture and termination of the lease if the claimed default is not cured within a set period of time' (Filmtrucks, Inc v Express Indus. & Term. Corp., 127 AD2d 509, 510, 511 N.Y.S.2d 862)" (ShopRite Supermarkets, Inc. v Yonkers Plaza Shopping, LLC, 29 AD3d 564, 566 [2d Dept 2006]). A notice that fails to make reference to the provision under which it is being issued has been held to be "ineffective to serve as a Notice to Cure" (Filmtrucks, Inc. v Express Indus. and Term. Corp., 127 AD2d 509, 510 [1st Dept 1987]).

Petitioner asserts that any perceived lack of detail and information in the Notice To Cure can be remediated through the service of a demand for a bill of particulars. While "a bill of particulars may be used to amplify the allegations in a complaint (see Nader v General Motors Corp., 25 NY2d 560, 565 ) and may be considered in determining the 'sufficiency of a pleaded cause of action' (Siegel, NY Prac. § 238 at 401 [4th ed.]), a bill of particulars may not be used to supply essential allegations of a cause of action that was not pleaded" (Sullivan v. St. Francis Hospital, 45 AD3d 833 [2d Dept 2007]). Predicate notices are not subject to amendment (Bray Realty LLC v Pilaj, 59 Misc 3d 130[A] [App Term 2d, 11th & 13 Jud Dists 2018]).

In the context of a motion to dismiss, the court is required to "accept the facts as alleged in the complaint as true, accord the plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Applying that liberal standard does not alter the conclusion that the Notice To Cure is deficient, and that the deficiencies are irremediable. Therefore, to the extent that the petition seeks judgment premised on claimed breach of substantial obligations of the tenancy, it is dismissed for lack of a sufficient notice to cure.

The Notice Of Termination, in addition to alleging the breach of substantial obligations of tenancy, alleges that respondents' conduct "constitutes a nuisance in that it is a persistent and continuing course of conduct evidencing an unwarrantable, and unreasonable use of the property to the annoyance, inconvenience and discomfort of others, the primary purpose of which is intended to harass the owner or other tenants by interfering with their comfort or safety. It constitutes a violation of the lease agreement."

The Notice Of Termination advances fewer grounds than did the Notice To Cure, omitting three that alleged the harboring of a dog, its defecation in public areas of the Building, and its unsupervised roaming of the hallways. The Notice Of Termination is silent as to those grounds. It asserts, verbatim, the remaining fifteen points set forth in the Notice To Cure, and adds the following:

"Since the service of the Notice To Cure upon you, you have continued to engage in all of the above behaviors.On Friday, February 14th, 2019, after service of the Notice To Cure upon you, the HPD assigned fireguard called the fire department due to the amount of smoke emanating from your apartment.Since the service of the Notice to Cure, you have failed to cure the Colyer [sic] situation and have failed to remove any and all of the excessive clutter in the subject premises."

It has been held that " 'the right to terminate the tenancy pursuant to the terms of the lease was dependent upon service of an adequate notice,' which is a condition precedent to the termination of the landlord-tenant relationship (Chinatown Apartments v Chu Cho Lam, 51 NY2d 786, 787)' " (Domen Holding Co. v Aranovich, 302 AD2d 132, 134 [1st Dept 2003]). The adequacy of such a notice is governed by determining whether the notice is "reasonable in view of [the] attendant circumstances" (323 3rd Street LLC v Ortiz, 13 Misc 3d 141[A] [App Term 2d 11th & 13th Jud Dists 2006][quoting Hughes v Lenox Hill Hospital, 226 AD2d 4, 17 [1st Dept 1996], lv to app den, 90 NY2d 892 [1997]). A notice is sufficient when its "fact-specific allegations, if proven, are sufficient to establish that tenant" (id.) is engaging in conduct proscribed by the applicable provision of the Rent Stabilization Code.

The Notice of Termination, quoting verbatim as it does the language of the Notice To Quit, suffers from the infirmities detailed above as afflicting the Notice To Cure. The addition of language asserting that the insufficiently alleged conduct has continued does not afford a basis for termination. The addition of an allegation that on that the notice of termination set for a cure to be effected, a fireguard called the fire department because of smoke emanating from the Apartment, without any assertion that the smoke was caused by any conduct or malfeasance by either respondent, or any allegation as to the outcome of the visit by the fire department or the cause of the smoke, is similarly lacking.

The Notice To Cure makes reference to a "classic Colyer [sic] situation" and the Notice of Termination avers that respondent has failed to cure. Where, as here, the Notice To Cure has been found insufficient, the failure to effect a cure of a curable default for which there was never a proper notice given cannot trigger the termination of a tenancy. Although the Notice To Cure and the Notice Of Termination both describe the nature of the condition to be remedied, the petitioner's apparent reference to the Collyer brothers undermines the clarity of the allegations. While those familiar with landlord and tenant law the phrase "Collyer holdover," such a reference would require someone unfamiliar with the term to engage in research to become informed of events transpiring over 70 years ago (Harold Faber, Homer Collyer, New York [*4]Recluse, Found Dead At 70 — Police Require Two Hours To Break Into Home, Booby Trapped With Junk, NY Times, March 22, 1947, p. 1, col. 5). A notice that requires a tenant to engage in research into relatively obscure historical events to ascertain the gravamen of a predicate notice is not "reasonable in view of [the] attendant circumstances" (323 3rd Street LLC, 13 Misc 3d 141[A]).

It has been held that where grounds exist "for both a nuisance holdover and a holdover based on breach of a substantial obligation of the lease, a landlord should be permitted to proceed on both grounds in the alternative (CPLR 3014) without the procedural prerequisites of one becoming engrafted on the other," (Rockaway One Company, LLC v Califf, 194 Misc 2d 191, 194 [App Term 2d Dept 2002]). In pertinent part, CPLR 3014 provides that "[s]eparate Causes of Action or defenses shall be separately stated and numbered and may be stated regardless of consistency. Causes of action or defenses may be stated alternatively or hypothetically. A copy of any writing which is attached to a pleading is a part thereof for all purposes." Examination of the petition, together with all documents annexed, reveals that the petition does not state independent causes of action for nuisance and for breach of a substantial obligation of tenancy, instead intermingling all of its allegations without distinguishing them.

The petition and the notices upon which it is predicated, are irremediably flawed, and the petition is therefore dismissed.

As additional relief, respondent asks for immediate trial on the "remaining matters," but nowhere addresses this branch of relief. While respondent's first counterclaim is denominated as a counterclaim for harassment, its allegations are made only in the most general terms, making reference to "repeated failures," "repeated work without a permit," "fabricating false statements," "substantial interruptions of essential services," "use of obstructionist tactics," "failure to perform repair work," "material misstatements to City departments and agencies," and "repeated acts or omissions." While the counterclaim closely tracks the regulatory language (NY Admin Code § 27-2004[48]), it fails to state facts that support those elements. A claim pleaded in such generic and generalized terms is, on its face, so patently insufficient that scheduling trial is unwarranted, and pursuant to CPLR 409, the counterclaim is dismissed without prejudice. Respondent's remaining counterclaims all demand injunctive relief, asking that the court enjoin discriminatory conduct. The court's injunctive power is limited to jurisdiction over "[p]roceedings for the issuance of injunctions and restraining orders or other orders for the enforcement of housing standards, (New York City Civil Court Act § 110); the injunctive relief sought is outside the subject matter jurisdiction of this court. Accordingly, respondent's remaining counterclaims are dismissed without prejudice.

This is the decision and order of the court.

Dated: June 24, 2019

Brooklyn, New York

DAVID A. HARRIS, J.H.C.