Recitation, as required by CPLR section 2219(a), of the papers considered in the review of this motion to dismiss and for further relief:Papers NumberedNotice of motion, affidavit and exhibits annexed 1Affirmation in opposition 2Affirmation in reply 3DECISION/ORDER AFTER ARGUMENT Petitioner commenced this summary holdover proceeding in August 2017 seeking possession of premises located at 98-17 Horace Harding Expressway, Apt. 10B, Corona NY 11368 (the “subject premises”). Petitioner served respondent with a Notice of Termination dated June 12, 2017, terminating respondent’s tenancy pursuant to Rent Stabilization Code §2524.3(b), §2524.2(b) and §2524.2(c) due to respondent committing or permitting a nuisance. The Notice of Termination refers to an incident that occurred on or about May 21, 2017 where Emmanuel Aokman, an alleged occupant of the premises, cursed at and punched a security officer. The predicate further alleges that police arrested Mr. Emmanuel while an E.M.T. treated the injured officer. Respondent appeared by counsel and filed a motion to dismiss this proceeding pursuant to CPLR §3211(a)(7) for failure to state a cause of action.”(O)n a motion to dismiss the complaint 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, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory.” (Siracusa v. Sager, 105 AD3d 937, 938 [2nd Dept 2013] quoting Breytman v. Olinville Realty, LLC, 54 AD3d 703, 703-704.)Under the RSC, a landlord may evict a tenant who “is committing or permitting a nuisance in such housing accommodation or the building containing 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 or occupants of the same or an adjacent building or structure by interfering substantially with their comfort or safety. RSC §2524.3(b).The Court of Appeals has defined nuisance to require a “continuous invasion of rights-a pattern of continuity or recurrence of objectionable conduct.” Domen Holding Co. v. Aranovich, 1 NY3d 117, 802 NE2d 135 (2003). Petitioner acknowledges in its affirmation in opposition that “much of the case law focuses its attention on the ‘persistent and continuing course of conduct’ language of §2524.3(b).” (Aff. in Opp. 8). However, petitioner argues that a single incident may constitute a nuisance where the incident is serious and egregious, but fails to cite any appellate authority issued subsequent to the Court of Appeals’ decision in Domen Holding Co. v. Aronovich which supports this argument.A single incident of an alleged occupant, who is not the tenant of record, cursing and punching a security guard does not establish a pattern of continuity or recurrence of objectionable conduct to constitute a nuisance. Domen Holding Co. v. Aranovich, 1 NY3d 117, supra. (See, for example, Pelham 1130 LLC v. Cause, 2017 NYLJ LEXIS 2081 [Civ. Ct., Bx. County 2017]; single instance of tenant striking building employee with a screwdriver insufficient to maintain nuisance proceeding). Therefore, petitioner has failed to state a cause of action.Respondent’s motion to dismiss is granted to the extent of dismissing this proceeding without prejudice pursuant to CPLR 3211(a)(7).This constitutes the decision and order of this court.Date: 4-16-18
