Recitation, as required by CPLR 2219(a), of the papers considered in the review of respondents’ motion to dismiss and petitioner’s cross-motion to dismiss affirmative defensesPapers NumberedNotice of Motion & Affidavits Annexed 1Notice of Cross-motion and Affidavits Annexed 2Answering Affidavits 3Replying Affidavits 4OtherDECISION AND ORDER Upon the foregoing cited papers, the Decision and Order on this Motion is as follows:Petitioner commenced this summary holdover proceeding against Migdalia Berroa seeking to recover possession of Apartment 90 in the building located at 550 West 157th Street, New York, New York (“subject premises”), after the service of a “Ten (10) Day Notice of Termination” (“Notice”). The Notice alleges that respondent has violated the terms of her lease and the provisions of the Rent Stabilization Code (“RSC”) in that she has rented rooms in her apartment without the landlord’s consent, she is operating a commercial bakery out of the premises and that her unlawful commercial activity constitutes an illegal use and occupancy of the subject premises.Respondent retained counsel and interposed a Verified Answer and Counterclaim which in addition to specific admissions and denials of elements of the petition, asserts seven defenses, two affirmative defenses and four counterclaims. Respondent now moves to dismiss the petition pursuant to CPLR §3211(a)(1), (a)(7) and (a)(8). Respondent argues that petitioner is required by RSC §2524.3(a) to serve a notice to cure regarding respondent’s alleged breach of a substantial obligation of her lease, and that petitioner’s Ten (10) Day Notice of Termination fails to state facts necessary to maintain this proceeding. Additionally, respondent seeks summary judgment pursuant to CPLR §3212 dismissing the petition.Petitioner cross-moves pursuant to CPLR §3211(b), 3212 and 409(b) to dismiss respondent’s defenses, for a judgment of possession in favor of petitioner, to amend the petition to substitute Leonardo Salcedo in place of John Doe and for payment of on-going use and occupancy. Petitioner argues that its Notice is sufficient as a matter of law and that it is entitled to a judgment of possession based on the allegations in the petition.Respondent’s first argument for dismissal is that petitioner failed to serve respondent with a Notice to Cure as required by RSC §2524.3(a). Respondent asserts that her tenancy was terminated based upon an allegation of serious and repeated violations of her lease pursuant to RSC §2524.3(a). The court notes that although the Notice contains language similar to RSC §2524.3(a), that the tenant is violating a substantial obligation of her tenancy, the Notice is not based on that provision of the Code. Petitioner seeks to terminate respondent’s tenancy on the grounds of nuisance pursuant to §2524.3(b). Therefore, that portion of respondent’s motion seeking dismissal on that basis is denied.Respondent’s second argument for dismissal is that the Notice is insufficient as a matter of law and it fails to state facts to support a proceeding based upon RSC §2524.3(b) for nuisance. The Notice herein states that respondent has been illegally renting individual rooms out of her apartment. More specifically the Notice states, “…as a recent inspection in December 2016 confirmed, feature separately keyed doors — to unauthorized and unknown individuals, for short-term rentals at rates exceeding those permitted by law…. For the past several months, Landlord or Landlord’s agents have encountered and observed unauthorized individuals, who are residing in the apartment, regularly entering and exiting the Premises.”Additionally, the Notice states that respondent is “illegally and clandestinely operating a commercial bakery out of the Premises.” Petitioner asserts that after the December 2016 inspection it observed (i) commercial grade baking appliances and equipment, (ii) substantial quantities of food and garbage, and (iii) the living room area being used as a “supply closet”. Petitioner further asserts that the use of the premises constitutes an illegal use and occupancy of the apartment and violates applicable laws and ordinances.It is well settled that a termination notice must state “the facts necessary to establish the existence of such ground” (RSC §2524.2 (b), see, Berkeley Assoc. Co. v. Camlakides, 173 AD 2d 193 [1st Dept. 1991]. A termination notice that merely recites the legal ground for eviction and fails to set forth any facts upon which the proceeding is based is insufficient and cannot serve as a proper predicate notice for an eviction proceeding. (see, Berkeley Associates Company v. Camlakides, 173 AD 2d 193 [1st Dept 1991]; see also, London Terrace Gardens, L.P. v. Heller, 40 Misc 3d 135 [1st Dept 2009] (the Court found the notice to be too generic and conclusory, it did not state case-specific facts tending to establish the ground for eviction and the petition was dismissed); UVI Holdings LLC v. Xiu Ling Ni, 28 Misc 3d 1209 [Civ Ct NY County 2010]).Herein, the court finds that the allegations in the Notice are conclusory and speculative. The court notes that the December 2016 inspection referred to in the Notice was precipitated by respondent in her pursuit to obtain repairs in the apartment. Also, the Notice is dated January 20, 2017, only one month after the landlord’s inspection of the subject premises. However, the allegations of the observations of unauthorized individuals for the past several months contains no time frames or factual details regarding the number of individuals observed and why the landlord believes these individuals were connected to the premises and unauthorized to be present in the apartment. Therefore, petitioner’s observation of separately keyed bedrooms and its allegations of unauthorized occupants is not enough to establish grounds to maintain this proceeding.Additionally, petitioner’s conclusory allegations of its observation of commercial grade bakery equipment, large quantities of food and garbage and use of the living room for storage is also not enough to establish that respondent is operating a commercial bakery out of her apartment and that her baking in the apartment creates a nuisance or is illegal. The court notes that petitioner fails to state in its Notice any provisions of respondent’s lease or applicable laws and ordinances that are a basis of respondent’s breach of lease and the basis of the alleged illegal activities. To establish that a party is creating a nuisance a landlord must show that the tenant is engaging in a persistent and continuing course of conduct evidencing unreasonable or unlawful use of the property to the annoyance, inconvenience discomfort or damage of others. RSC §2524.3(b).Respondent acknowledges that she often times bakes “Dominican cakes” in her home and that baking is her passion. Respondent asserts that the two professional mixers she owns were both gifts to her from her husband and from a friend. She states that other than the mixers she does not own any other commercial baking appliances or equipment. To sustain the charge that a tenant is sufficiently objectionable so that his or her lease may be involuntarily terminated, the landlord must show a course of conduct that threatens the safety and comfort of others. Parmac Realty Corp. v. Bush, 101 Misc2d 101 [Civ Ct NY Cty 1979].RSC §2524.3(b) defines nuisance as a persistent and continuing course of conduct evidencing unreasonable or unlawful use of the property to the discomfort or damage of others with the primary purpose to harass the owner and the other tenants. The Notice herein does not sufficiently state how respondent, a 63 year old, twenty-five (25) year resident of the subject premises is threatening the safety and comfort of the other tenants and that this behavior is intended to harass the owner or other tenants in the building.Contrary to petitioner’s assertions, the Notice does not state facts necessary to establish the grounds for nuisance. Impermissibly vague allegations in a notice of termination render the entire notice deficient and a defective predicate notice is unamendable and requires the dismissal of the proceeding. Chinatown Apartments, Inc. v. Chu Cho Lam, 51 NY2d 786 [1980].Based on the foregoing, the court finds that petitioner’s notice of termination is defective as it fails to state sufficient grounds to maintain this holdover proceeding. Therefore, petitioner’s cross-motion is denied and the branch of respondent’s motion seeking dismissal for failure to state a cause of action is granted and the petition is dismissed.This constitutes the decision and order of the Court.Dated: New York, New YorkJune 28, 2018
