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 Exhibits Annexed 1Answering Affirmation and Exhibits Annexed 2Replying Affirmation and Exhibits Annexed 3DECISION/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 3H, at 522 Ocean Avenue, Brooklyn, NY 11226 based on the claims in the predicate notices. The predicate notice to cure contains five paragraphs of alleged nuisance behavior including loud, disruptive behavior in the apartment and the common areas, excessive traffic into and exiting the apartment, loitering in the hallways, interfering with the quiet enjoyment of other tenants, and management has received complaints. There are no dates, times, or descriptions of any specific incidents or factual recitations.The notice of termination states that subsequent to the expiration of the cure period, management received additional complaints. There are no dates, times or descriptions of specific, factual activity that petitioner relies upon.Respondent moves by notice of motion for an order dismissing the petition with prejudice pursuant to CPLR 3211(a)(7) on the grounds that it fails to state a cause of action for nuisance behavior because the predicate notices are vague, and fail to sufficiently plead that respondent’s actions constituted a nuisance. Respondent also seeks dismissal based on the grounds that the notice of termination fails to contain any specific allegations that respondent failed to timely cure. In the alternative, respondent seeks permission to serve and file his proposed answer.In opposition to the motion, petitioner argues that the “facts” in the predicate notice must be accepted as true, and that the notices provide sufficient specific detail to survive a motion to dismiss pursuant to CPLR 3211(a)(7). Petitioner states it is not required to list each and every instance that occurred, and it would be unrealistic to require the landlord to provide dates, times and specific facts to support its allegations. The termination notice stated the landlord received “complaints” after the termination of the cure period without any facts to support the claim. Merely adding this one sentence fails to satisfy the requirement that respondent receive sufficient notice of the claims against him to investigate and form a defense.DiscussionRent Stabilization Code Section 2524.2(b) states in pertinent part:…every notice to a tenant to vacate or surrender possession of a housing accommodation shall state the ground under section 2524.3 or 2524.4… upon which the owner relies for removal or eviction of the tenant, the facts necessary to establish the existence of such ground, and the date when the tenant is required to surrender possession…“…the appropriate standard for assessment of the adequacy of notice is one of reasonableness in view of all attendant circumstances…” Hughes v. Lenox Hill Hospital, 226 AD2d 4 at 17 (AD 1st Dept. 1996) The notice must be”…as a whole sufficient adequately to advise…tenant and to permit it to frame a defense…” Rascoff/Zsyblat Org., Inc. v. Directors Guild of Am., Inc, 297 AD2d 241, 242 (AD 1st Dept. 2002) The Appellate Division Second Department has ruled in Giancola v. Middleton, 21 Misc3d 34 (AT 2nd Dept. 2008), rev’d 73 AD3d 1056 (AD 2nd Dept., 2010) in the case of a notice of non-renewal, that a predicate notice was adequate because it tracked the statutory language, and that, “Further evidentiary matters are more appropriately explored in discovery at trial…”“A predicate notice in a holdover proceeding need not lay bare a landlord’s trial proof, and will be upheld in the face of a ‘jurisdictional’ challenge where, as here, the notice is ‘as a whole sufficient adequately to advise…tenant and to permit it to frame a defense.’ Rascoff/Zsyblat Org., v. Dirs. Guild of Am., Inc, 297 AD2d 241, 242 (AD, 1st Dept. 2002) The petitioner does not have to prove its prima facie case in the predicate notice, and the “appropriate test is one of reasonableness in view of the attendant circumstances…” Hughes v. Lenox Hill Hosp., 226 AD2d 4, 17 (1st Dept. 1986) Iv to appeal den’d 90 NY2d 829 (1997). Nuisance allegations “… although setting forth no names, dates or specific instances of the misconduct.” must still describe a nuisance in violation of 9 NYCRR Section 2524.3(b)… with sufficient detail to have allowed tenant to prepare a defense…” Pinehurst Constr. Corp., v. Schlesinger, 38 AD3d 474, 475 (AD, 1st Dept. 2007)A nuisance involves conduct that is recurring, frequent, continuous or extremely dangerous, which constitutes an unreasonable or unlawful use of the property to the annoyance, inconvenience, discomfort or damage of others that has the primary purpose of intentionally harassing the landlord, other tenants or occupants by substantially interfering with their comfort or safety. Domen Holding Co. v. Aranovich, 1 NY3d 117 (2003), Goldman v. Flynn, 2015 NY Misc Lexis 2905 (Civ NY 2015)There are no specific allegations of recurring, frequent, continuous or extremely dangerous behavior which constitutes an unreasonable or unlawful use of the property supported by dates, times, factual descriptions or any specificity. Tri Cruger Realty, LLC v. Masterson 36 Misc3d 145[A], App Term, 1st Dept. 2012)A termination notice that fails to set forth the facts upon which the landlord relies for eviction is defective. Oxford Towers Co v. Lietes, 41 AD3d 144 (2007) The termination notice herein is defective because it fails to allege that the defaults specified in the notice to cure, which were curable, occurred after the cure period terminated. 31-67 Astoria Corp v. Landaira, 54 Misc3d 131[A], (App Term, 2nd Dept, 2017) The notice of termination merely states that management received complaints after the cure period expired without any dates, times, or factual descriptions of the alleged nuisance behavior. Respondent cannot fashion a defense without notice of the dates, times, and specific factual allegations against him.A predicate notice is a statement of facts and it cannot be amended. The predicate notice is defective as if fails to allege any times, dates, or facts to put respondent on notice of the claims against him enabling him to form a defense. The predicate notice is facially defective.Based on the foregoing the respondent’s motion to dismiss the petition is granted, and the petition is dismissed without prejudice. This constitutes the decision and order of the court.DATED: November 21, 2018
