RECITATION, AS REQUIRED BY CPLR SECTION 2219(A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION:PAPERS NUMBEREDNOTICE OF MOTION AND AFFIRMATION AND AFFIDAVIT AND EXHIBITS ANNEXED 1ANSWERING AFFIRMATION AND AFFIDAVITS AND EXHIBITS ANNEXED 2DECISION/ORDER UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS:Petitioner commenced this nuisance holdover proceeding seeking possession of the subject rent stabilized apartment, 4-C, at 9411 Shore Road, Brooklyn, NY 11209, based on the claims in the predicate Notice to Tenant of Termination of Tenancy and Intention to Recover Possession.The predicate notice states in part,…your rent stabilized tenancy if being terminated pursuant to Section 2524.3(b) of the Rent Stabilization Code, being that you have committed or permitted a nuisance in the subject apartment and referenced housing accommodation and maliciously, or by reason of gross negligence, substantially damaged the subject apartment and referenced housing accommodation and continue to do so.…your tenancy at the premises is hereby terminated effective November 15, 2016, upon the grounds that you have violated Section 2524.3(b) of the Rent Stabilization Code.…the Owner and Landlord, Shore Ridge Associates, (“Landlord”) reasonably believes that the facts necessary to establish the existence of such grounds of termination pursuant to Section 2524.3(b) of the Rent Stabilization Code include, but are not limited to the following:1. In violation of Rent Stabilization Code Section 2524.3(b) you have now committed or permitted a nuisance to occur emanating from apartment 4C since in or about July 2016, which continues unabated to this date, to wit: that since in or about July 2016, you and/or guests, invitees, or occupants of apartment 4C, allow excessive cigarette smoke flow through gaps in and around the base boards, floors, closets, wall sockets, and front door of the Premises and into apartment 4D which condition you have allowed to exist unabated to this date.2. In violation of Rent Stabilization Code Section 2524.3(b) you have now committed or permitted a nuisance emanating from apartment 4C since in or about July 2016, which continues unabated to this date, to wit: that since in or about July 2016, on numerous occasions you and/or guests, invitees, or occupants of apartment 4C, from cigarette smoke that has been exhausted out of open windows of apartment 4C that has penetrated into apartment 4D through open bedroom, bathroom, and kitchen windows causing the tenant in apartment 4D to keep the windows closed at all times and also resulting in their inability to enjoy fresh air and/or use their balcony outside of apartment 4D which condition you have allowed to exist unabated to this date.3. In violation of RSC Section 2524.3(b) you have now committed or permitted a nuisance to occur emanating from apartment 4C since in or about July 2016, which continues unabated to this date, to wit: that since in or about July 2016, you and/or guests, invitees, or occupants of apartment 4C, have allowed excessive amounts of cigarette smoke to infiltrate the 4th floor common hallway of the subject apartment building causing an offensive and malodorous condition to exits in the 4th floor common hallway resulting in the physical discomfort of the other tenants residing on the 4th floor of the subject apartment building which condition you have allowed to exist unabated to this date.4. ….that since in or about July 2016, which continues unabated to this date, to wit: that since in or about July 2016, you and/or guests, invitees, or occupants of apartment 4C, have allowed excessive amounts of cigarette smoke to emanate from apartment 4C that has resulted in a befouling of the air outside of the apartment and the 4th floor common hallway that has invaded apartment 4D requiring the tenants in apartment 4D to purchase, install and operate: (I) three high-end air purifiers on a 24/7 basis; (ii) a filter on the inside bottom of the front door, (iii) sealing of the baseboards along the bedroom and living room walls; (iv) covering unused portions of electrical outlets in the bedroom and living room; (v) taping over gaps between, above, and below the panels of the sectional mirror that forms the 4D entryway wall; (vi) taping over gaps in the walls and floor in the entryway and bedroom closets; (vii) and setting up multiple air fresheners and charcoal filters around the apartment which conditions you have allowed to exist unabated to this date.5. ….that since in or about July 2016, you and/or guests, invitees, or occupants of apartment 4C, have allowed excessive cigarette smoke to emanate from apartment 4C into the common hallway of the 4th floor and to penetrate apartment 4D to such an extent that it has aggravated the asthma condition to one of the tenants of apartment 4D which condition you have allowed to exist unabated to this date.6. ….you have allowed excessive cigarette smoke to emanate into the 4th floor common hallway and into apartment 4D that it has interfered with the quiet enjoyment of the tenants apartment 4D to such an extent that they have threatened to break their lease causing economic harm the Landlord which condition you have allowed to exist unabated to this date.Respondent filed an answer, and a demand for a bill of particulars. Respondent moves by notice of motion, for an order pursuant to CPLR 3212, granting summary judgment in respondent’s favor and an award of attorneys’ fees. Petitioner opposes the motion. The predicate notice alleges that respondent(s) smoke cigarettes inside their apartment. There is no allegation in the predicate notice that respondent smokes in the common areas, public hallways, or anywhere outside of their apartment. The predicate notice is based solely on nuisance pursuant to RSC 2524.3(b), (9 NYCRR 2524.3(b), and it is not based on a lease violation.Respondent states in support of his motion that he has resided in the subject apartment for forty six years since 1972. Smoking has not been prohibited inside the apartments since he moved in September 1972. He states that neither he, his wife, nor any of their guests have ever smoked in the common areas or the public hallways. Petitioner does not dispute these facts.Respondent argues since it is undisputed that respondents only smoke within the confines of the subject apartment, there is no lease violation alleged, smoking within an apartment is not prohibited by the parties’ lease, that, therefore, smoking within a rent stabilized apartment is not a nuisance as a matter of law. Respondent relies on the holding in Jovic v. Blue, 56 Misc3d 136[A](App Term, 2nd & 11th Jud Dist, 2017) to support his motion for summary judgment.In opposition, petitioner’s agent, Penny Priceman, states in her affidavit acts of alleged “nuisance” behavior that are not contained in the predicate notice. Petitioner’s agent attempts to distinguish the holding in Jovic by arguing that the respondents are not disabled, they can afford to relocate and they will not be homeless if evicted from this rent stabilized apartment. Ms. Priceman also includes her opinion of the neighbor, who she describes as “a respected attorney” from the building who wrote a letter of complaint about respondents. Petitioner’s agent argues that the holding in Jovic does not shield respondent’s other abusive behavior. There is no “abusive behavior’ alleged in the predicate notice other than smoking within the subject apartment.Petitioner attaches an affidavit from a complaining tenant, Ann Cohen, who resides in apartment 4D. It appears that Ms. Cohen’s complaints form the basis for the predicate notice. Her affidavit contains additional nuisance activities that are not included in the predicate notice.Petitioner argues that Jovic should be restricted to its facts, i.e., including that the respondent was disabled. Petitioner agrees that Jovic held that in the absence of a house rule, or lease provision prohibiting smoking in an apartment, no evidence that respondent smoked in a common area, that smoking within a rent stabilized apartment does not constitute a nuisance as a matter of law. Petitioner argues that Jovic does not apply in the instant case, because the tenant in Jovic was disabled. Petitioner fails to address the equity interest of the respondents in their forty six (46) year rent regulated tenancy, just as the tenant in Jovic presented a compelling equitable argument.Discussion“While the evidence at trial showed that tenant smoked inside her apartment, there was no house rule or provision in the lease which prohibited such conduct. There was also no evidence establishing that tenant smoked in the common areas. Under the circumstances presented, as a matter of law, tenant’s smoking did not constitute a nuisance. (Citations omitted)” Jovic v. Blue, 56 Misc3d 136[A], (App Term, 2nd Dept, 2017) Although the plaintiffs in Ewen interposed a cause of action for private nuisance against a neighbor, the Appellate Term, 1st Dept, relied on the same factors as the court in Jovic. Ewen v. Maccherone, et al, 32 Misc3d 12, 14, (App Term, 1st Dept. 2011) The court in Ewen held that there was no cause of action for nuisance where the defendants smoked in the privacy of their own apartment, they were not prohibited from smoking inside their apartment by any existing statute, lease, rule or by law, and there was no lease, or rule imposing on defendants an obligation to ensure that their cigarette smoke did not drift into other residences. Ewen at 15, Feinstein v. Rickman, 136 AD3d 863, 864-5, (AD 2nd Dept. 2016)Petitioner argues that Jovic should be distinguished because the respondent was disabled, and Jovic should be limited to its facts. In Jovic, the issue of the tenant’s severely disabled daughter was raised in response to petitioner’s nuisance claims based on a “stream of traffic” of caregivers into the apartment. The mental disability of the respondent in Jovic, who lived in the apartment all her life, was raised in response to nuisance claims based on putting garbage in the wrong place, and not in response to smoking within the apartment. Respondent’s daughter’s disability did not enter into the court’s analysis in holding that smoking cigarettes within a rent regulated apartment, in the absence of a lease violation or prohibition, and no evidence of smoking in a common area, does not constitute a nuisance as a matter of law. Respondents herein have resided in the rent regulated apartment for forty six years, and the only allegation of nuisance behavior is smoking cigarettes inside the subject apartment. There is no claim of a lease violation, or a lease prohibition for smoking cigarettes.The complaining neighbors have remedies including a claim for breach of the warranty of habitability. Poyck v. Bryant et al, 13 Misc3d 699 (Civ Ct, NY Cty, 2006) (holding that second hand smoke qualifies as a condition that invokes the protections of Real Property Law 235-b). Upper East Lease Associates, LLC v. Cannon, 37 Misc3d 136[A](App Term, 2nd Dept. 9th & 10th Jud Dists, 2012)Petitioner, its agent, and the complaining neighbors raise various other examples of nuisance behavior by respondents in their supporting papers. None of these allegations are in the predicate notice, and therefore, cannot be considered. A predicate notice, although annexed to a pleading, is not itself a pleading. It is an act which must be completed before the pleadings are served, and it is therefore, not subject to amendment. Chinatown Apartments, Inc v. Chu Cho Lam, 51 NY2d 786, 787 (1980), Predicate Notices Required for Statutory Eviction Proceedings Under RPAPL 711, 2015, Hon. Peter M. Wendt.The facts are not in dispute. The legal issue to be resolved is whether a claim, pursuant to RSC 2524.3(b) for nuisance behavior, is valid based on a rent stabilized tenant smoking cigarettes within his apartment, in the absence of any evidence or claim that there is smoking in a public area, and in the absence of a lease violation, or smoking prohibition in the lease or rules. Based on the undisputed facts, and the holding in Jovic v. Blue, as a matter of law, this behavior does not constitute a nuisance. Therefore, respondent’s motion for summary judgment in his favor is granted. The petition is dismissed with prejudice. This constitutes the decision and order of the court.DATED: May 7, 2018
