Tzifil Realty Corp. v Rodriguez

[*1] Tzifil Realty Corp. v Rodriguez 2019 NY Slip Op 52144(U) Decided on December 3, 2019 Civil Court Of The City Of New York, Kings County Finkelstein, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 3, 2019
Civil Court of the City of New York, Kings County

Tzifil Realty Corp., Petitioner-Landlord,

against

Marisol Rodriguez, Respondent-Tenant



L & T 59944/19



For Petitioner: Felipe E. Orner, Esq. 72-29 137th Street, Flushing NY 11367-2310

For Respondent: Brooklyn Legal Services by Brett A. Dolin, Esq. 105 Court Street Brooklyn, NY 11201
Marc Finkelstein, J.

The premises herein are subject to rent stabilization. Petitioner has brought this proceeding as a nuisance holdover proceeding pursuant to RSC §2524.3(b). Felipe Orner, Esq. is the attorney for petitioner and states that he is also "the managing agent and agent for the landlord, owner of the premises, OR FM Associates LLC, both entities I am an officer and possess an ownership interest" and is also the registered managing agent for the subject premises. Respondent moves to dismiss the petition pursuant to CPLR 3211(a)(2) and (a)(7) because the predicate notice of termination is fatally defective and fails to state a cause of action.[FN1] If the court were to not grant the motion to dismiss, respondent moves in the alternative for an order disqualifying petitioner's counsel, Mr. Orner, pursuant to "Rules of Professional Conduct (22 NYCRR 1200.0) rule 3.7(a) because, as he is also petitioner's officer and managing agent, he is likely to be a witness on significant issues of fact.

The predicate notice of termination sets forth a hodgepodge of purported nuisance/harassment conditions created by respondent:

1) "Your continued failure to pay your rent since April of 2018, and your willing failure to pay a single month of rent since your mother died."

2) Failure of respondent to renew her DRIE after it expired on May 31, 2018, with the frozen rent therefore no longer valid;

3) "(Y)ou also were rejected on any other subsidies for your rent creating additional nuisance against the landlord";

4) On April 2, 2018 respondent physically threatened harm to the superintendent's family during the course of a marshal's eviction in a prior nonpayment proceeding under Index No. L & T 51268/18;

5) Respondent made "false sworn representations to the Court where you have sought FRIVOLOUS (sic) civil and criminal sanctions against the landlord," apparently related to the above prior nonpayment proceeding;

6) "[R]efusal on October 18, 23 and 30 and November 7, 2018 to remove the protruding air conditioner in your bedroom into the fire escape which has also caused damages to the landlord in penalties and legal costs related to the existing violation which was noticed to you in person by the landlord and your legal counsel under the present existing appeals by email."

In arguing for dismissal, respondent argues that the notice of termination "alleges, in vague and conclusory fashion, only: (1) issues currently pending under ongoing litigation between the parties following Petitioner's appeal of this court's decision [in Index No. L & T 51268/18] to hold a hearing on damages for civil contempt and liability for criminal contempt against Mr. Orner; (2) non-payment of rent that is properly the subject of a non-payment proceeding; (3) a single, vague described threat; and (4) a 'protruding air conditioner,' which allegation is vague, conclusory, does not rise to the level of a nuisance under RSC §2524.3(b), is easily curable, and should have been brought pursuant to RSC §2524.3(a) as a breach of lease claim requiring a notice to cure, but for Petitioner's failure to provide Ms. Rodriguez with a rent-stabilized lease."

At oral argument, petitioner's counsel seemed to argue that the amalgam of all the various allegations of nuisance conduct in the notice of termination raise this matter to the level of a sufficiently pled cause of action for nuisance. However, the court finds that each allegation taken by itself must properly support a nuisance actions and any of the allegations which do not meet this threshhold must be dismissed. Further, if none of the allegations individually constitute a valid cause of action for nuisance, then the combination of all of them does not convert the proceeding to a proper cause of action for nuisance and the result would be dismissal of the proceeding. The court must examine each allegation individually and cannot be swayed by the mere number of different allegations leveled against respondent.[FN2]

It is important to note that this proceeding is not brought as a nonpayment proceeding or a holdover proceeding based on alleged violations of substantial obligations of the lease. The entire basis for termination of respondent's tenancy is RSC §2524.3(b), which permits eviction of [*2]a rent stabilized tenant for nuisance conduct where:

The tenant is committing or permitting a nuisance in such housing accommodation . . . or is maliciously, or by reason of gross negligence, substantially damaging the housing accommodation; or the tenant engages in a persistent and continuing course of conduct evidencing an unwarrantable, unreasonable or unlawful use of the property to the annoyance, inconvenience, discomfort 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.

Courts have defined nuisance as a recurring course of conduct. "[N]uisance imports a continuous invasion of rights — 'a pattern of continuity or recurrence of objectionable conduct'" Domen Holding Co. v Aranovich, supra, citing from Frank v Park Summit Realty Corp 175 AD2d 33 (1st Dept 1991). "Some degree of permanence is an essential element of the conception of nuisance." Metropolitan Life Co v. Moldoff, 187 Misc 458 (App Term, 1st Dept 1946). Courts have generally held that a single occurrence or a series of isolated incidents do not constitute nuisance.

Petitioner's mere conclusory statement, with nothing more, that respondent has failed to pay rent from April 2018 or "since your mother died", does not constitute a cause of action for nuisance/ harassment under RSC §2524.3(b). Such a claim, with far more specifics, would be properly the subject of a nonpayment proceeding, wherein the tenant could, in effect cure, and maintain the tenancy, upon payment of any rent determined to be due, rather than being unable to cure a nuisance proceeding for nonpayment. See, Gruen v Patterson, 79 AD2d 915 (1st Dept 1981). Moreover, the termination notice nowhere states that this was brought as a chronic rent delinquency proceeding (despite petitioner's counsel's use of the term chronic nonpayment in the opposition papers). Rather than allowing nuisance proceedings for nonpayment, the courts have allowed eviction of rent stabilized tenants for repeated late payment of rent on the theory that chronic late payment is a violation of the lease. Solow v Pegushin, NYLJ, March 26, 1992, p 25, col 1 (App Term, 1st Dept). In addition, in order to prevail in a holdover proceeding based on chronic nonpayment, the landlord must establish that it was required to commence frequent nonpayment proceedings in a relatively short period of time. Pamela Equities Corp v Coverton, NYLJ, July 18, 1990, p 18, col 1 (App Term, 1st Dept). No such allegations are contained in the notice of termination herein. Petitioner fails to allege in the notice of termination that it brought a single nonpayment case or even served a single rent demand.

It is obvious that any failure of respondent to maintain her DRIE subsidy, even if true, is not a grounds for eviction under a nuisance holdover proceeding, or, for that matter, under any type of eviction proceeding. A tenant is not required to maintain a DRIE subsidy as a prerequisite for continuing her tenancy. Parenthetically, petitioner's allegations in this regard are conclusory and there does not appear to have been any intent by respondent not to maintain her DRIE especially as it is now admitted by the parties that respondent did renew her DRIE. The DRIE allegation is irrelevant and patently frivolous as a grounds for eviction under a nuisance proceeding or, for that matter, under any type of eviction proceeding. Similarly, petitioner's vague and conclusory allegation that respondent was also "rejected on any other subsidies for your rent creating additional nuisances against landlord" is also irrelevant and patently frivolous [*3]as a grounds for eviction.

The notice of termination sets forth allegations that apparently emanate from a prior nonpayment proceeding between the parties, Index No. 51268/18, with which this court was not involved. In that prior proceeding, the court ordered respondent to be restored to possession following her eviction. Apparently, based upon petitioner's alleged disobedience of the court's order, respondent filed a motion seeking to hold petitioner and Mr. Orner in civil and criminal contempt. The matter was restored to the calendar and the court found petitioner in civil contempt for both failing to provide ordered interim access as well as for failing to restore respondent to possession forthwith upon payment of rent arrears and marshal/legal fees as per the court's April 4, 2018 order. The matter was set for a hearing to determine the damages for civil contempt and a determination of whether petitioner and Mr. Orner committed criminal contempt and, if so, the resulting penalties.[FN3] Petitioner has appealed the court's order which is apparently pending before the Appellate Term.

Without any specifics whatsoever, petitioner alleges, in total, that in said prior proceeding, respondent made "false sworn representations to the Court where you have sought FRIVOLOUS (sic) civil and criminal sanctions against the landlord." Clearly, the Appellate Term has not yet made a determination as to the truth or falsity of any statements or the frivolity of any claims made by respondent. Petitioner has full access to the remedies available to him through the court process in contesting any contempt findings. Respondent is correct that litigation between these parties, particularly as it is pending and ongoing litigation, cannot form the basis for a finding of nuisance pursuant to RSC §2524.3(b), especially where respondent is lawfully exercising her rights. RSC§2524.3(b) specifically provides that "the 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 other ground for eviction pursuant to this subsection.[FN4]

Also in regard to the events surrounding the prior proceeding, the notice of termination sets forth the vague and conclusory allegation that on April 2, 2018 respondent physically threatened harm to the superintendent's family during the course of the marshal's eviction. A predicate notice must plead sufficient facts such that a tenant will be able to prepare a defense. Giannini v Stuart, 6 AD2d 418 (1st Dept 1958). The inquiry is whether the notice meaningfully apprised the tenant of the basis of the claimed nuisance conduct and whether it was "reasonable in view of the attendant circumstances." Hughes v Lenox Hill Hospital, 226 AD2d 4, 17 (1st Dept [*4]1996), lv dismissed NY2d 829.[FN5]

Moreover, petitioner has thus alleged a single vague and conclusory nuisance incident of threatened physical harm. However, the allegation does not state a continuous invasion of rights — a pattern of continuity or recurrence of objectionable conduct as nuisance is defined in Domen Holding Co. v Aranovich, supra. There are multiple similar cases that were dismissed as a result of the notice of termination alleging only one single act or incident. In Sanford Flushing Associates v James, NYLJ, May 21, 1997, p 29, col 6 (App Term, 2nd Dept), at the landlord's office, the tenant became upset, shouted at and threatened the landlord's employees and hurled a cup of coffee in their direction which struck a glass partition that separated the employees from the tenant and "splattered all over". The court held this single instance of objectionable conduct by the tenant was insufficient to make out a case of nuisance.

See also Metzger v Hecht 187 Misc 399 (City Ct, Mt Vernon 1946) ("...one act of disorderly conduct on the part of the tenants, although there be a conviction for the same, does not constitute a nuisance"); Truncali v Kusstatscher, 61 Misc 2d 500 (Civ Ct, Queens Cty 1969) (tenants assaulting the landlord and use of profane and abusive language held to be an isolated instance of objectionable conduct insufficient to warrant eviction); B.A. Assocs, Equities Corp v Baez, NYLJ, January 6, 1993, p 25. col; 2 (Civ Ct, Kings Co) (even if an elderly tenant was injured by objects thrown from the tenant's window, that single act, even if illegal, does not constitute a nuisance). Respondent also cites 711 Seagirt Ave Holdings LLC v Harris, 62 Misc 3d 1227 (A) at *3 (Civ Ct, Queens Cty 2019) where the court dismissed the petition finding that even a single arrest for assault and harassment did not rise to the level of a nuisance.

In this matter there was no arrest or conviction, no actual action allegedly taken by respondent to harm the superintendent's family, and no continuity or recurrence of any dangerous conduct, as there was in the few cases cited by petitioner. The court agrees with respondent that there is nothing alleged in this proceeding which approaches the circumstances alleged in petitioner's cited cases. Thus, the court finds that the single threat alleged in the notice of termination does not rise to the level of nuisance under RSC§2524.3(b).

Lastly, petitioner alleges respondent is causing an additional nuisance due to her failure to remove a protruding air conditioner into the fire escape after four notices within three weeks. Petitioner offers conclusory statements that the air conditioner has caused a nuisance to the safety and well being of the tenants and caused damages to the landlord in penalties and legal costs. Petitioner does not allege any additional facts and the allegation itself lacks specificity.

Moreover, petitioner makes a vague attempt to couch the protruding air conditioner as a nuisance rather than properly asserting a breach of lease pursuant to RSC§2524.3(a). Such a [*5]claim would have required an opportunity to cure pursuant to a predicate notice to cure.[FN6] In fact, it appears petitioner admits that the conduct has been cured. In a similar situation, respondent cites 312 Bay Ridge Co, Inc v Cordova, NYLJ, May 12, 2017, 1202785998794 (Civ Ct, Kings Cty), which held that a tenant who allegedly blocks a fire escape with an air conditioner is entitled to a post-trial cure period as per RPAPL 753(4).

Accordingly, the court finds that under the circumstances presented, the air conditioner allegation involves a single instance and does not set forth "a pattern of continuity or recurrence of objectionable conduct'" as nuisance is defined in Domen, supra. It does not rise to the level of conduct that would justify the eviction of respondent and her family under a nuisance theory.

In conclusion the court has found that none of the individual allegations contained in the notice of termination constitute a valid cause of action for nuisance. As a result, neither can the combination of all of the allegations convert the proceeding to a proper cause of action for nuisance. Accordingly, the petition is hereby dismissed.

This constitutes the decision and order of the court.

Dated: December 3, 2019

Brooklyn, New York

_________________________

MARC FINKELSTEIN

JHC Footnotes

Footnote 1:Respondent has filed a motion to dismiss, not a motion for summary judgment as, at times, stated in petitioner's opposition papers.

Footnote 2:The court notes that it is bound to analyze the sufficiently of the notice of termination as written. "[I]n evaluating the legal sufficiency of the nuisance claim, only the allegations contained in the notice of termination should be considered; any other claims or violations not specified in the notice must be disregarded." Domen Holding Co. V Aranovich, 302 AD2d 132 (1st Dept 2003), affd as mod 1 NY3d 117 (2003). Thus, the court shall disregard any additional factual allegations and legal conclusions set forth only in petitioner's opposition papers.

Footnote 3:See the court's decision dated June 27, 2018 annexed as Exhibit 2 to the opposition.

Footnote 4:Moreover, the court believes that even if the Appellate Term were to agree with petitioner that the facts do not warrant any contempt finding in the prior proceeding, respondent was still exercising her rights, this single non-recurring incident would not meet the definition of nuisance conduct under the RSC and Domen, and petitioner's relief in the prior proceeding would not form the basis for a nuisance cause of action in the instant proceeding which would result in the eviction of respondent for nuisance conduct.

Footnote 5:In the same paragraph alleging physical threat to the superintendent's family on April 2, 2018, it also states that said physical threat has continued by harassment of the landlord in alleged false statements to the court in regard to seeking contempt in the prior proceeding. This claim is addressed above. Also the court fails to see how the alleged false statements in regard to the landlord has any relationship to continuing the alleged physically threatened harm to the superintendent's family.

Footnote 6:Respondent asserts petitioner did not bring the appropriate breach of lease cause of action because she has been denied a lease. Thus, respondent concludes: "The court should not reward Petitioner's failure to offer Ms. Rodriguez a proper rent-stabilized lease by permitting him to re-fashion curable breach of lease claims as nuisance allegations."