Recitation, as required by CPLR §2219(a), of the papers considered in the review of respondent’s motion for an order pursuant to CPLR 3211(a)(7) and RSC §2524.2(b) dismissing the petition or alternatively deeming the annexed Verified Answer with Counterclaims and Demand for a Bill of Particulars deemed served and filed.Papers NumberedNotice of Motion and Affidavits Annexed 1Order to Show Cause and Affidavits AnnexedAnswering Affidavits 2Replying Affidavits 3ExhibitsDECISION/ORDER Upon the foregoing papers, the Decision / Order on this motion is as follows:BackgroundPetitioner commenced the instant holdover proceeding by notice of petition and petition. Prior to commencement petitioner served a Ten Day Notice to Cure alleging that respondent was violating a substantial obligation of her tenancy and creating a nuisance by smoking in the building, failing to provide access for repairs and creating a Collyer situation in the apartment. The cure notice was followed by a Seven Day Notice terminating respondent’s tenancy effective May 22, 2018. Respondent now moves to dismiss the petition for failure to state a cause of action pursuant to CPLR 3211 (a)(7) and RSC §2524.2(b). In the alternative respondent seeks to have her answer and demand for a bill of particulars deemed served and filed.DiscussionOn a motion to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford liberally construe the pleadings, accept all facts alleged in the pleading as true and determine only whether the facts fit within any cognizable legal theory. Leon v. Martinez, 84 NY2d 83 [Ct App1994]. The court’s “sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail.” Morris v. Morris, 306 AD2d 449 [2nd Dept 2003].Respondent argues that the petition is defective because it fails to state sufficient facts to support either a claim for nuisance or violation of a substantial obligation of tenancy. A proper predicate notice is required prior to commencement of a holdover proceeding. Chinatown Apartments v. Chu Cho Lam, 51 N.Y.2d 786, 412 N.E.2d 1312, 433 N.Y.S.2d 86 (Ct App 1980). RSC §2524.2(b) requires that “[e]very notice to a tenant to vacate or surrender possession of a housing accommodation shall state the ground under section 2524.3 or 2524.4 of this Part, 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 petition here incorporates by reference the allegations set forth in the notice of termination. The earlier notice alleges that: 1)multiple tenants have complained of cigarette smoke emanating from respondent’s apartment; 2) respondent continually smokes in the subject apartment; 3) the smoking has vexed and harassed other tenants in the building; 4) the other tenants have request that petitioner end their leases early because of the smoke; 5) respondent has continually denied petitioner’s request to do necessary repairs in her apartment; 6) respondent is engaging in objectionable conduct by creating a Collyer’s situation in the apartment and; 7) the horrendous conditions and excessive cigarette smoke have caused an odor to emanate from the apartment severely distressing other tenants.Responded contends that these allegations lack sufficient specificity and do not rise qualitatively to the level of a nuisance. Respondent notes that petitioner failed to identify anyone who observed the odor emanating from her apartment or who was affected by her alleged behavior. Petitioner also failed to provide dates or times when she supposedly denied access, and failed to allege that the behavior is recurrent and threatens the health and safety of other tenants and that it continues unabated.Petitioner in opposition argues that it has set forth three separate and equally valid causes of action for nuisance, namely excessive hoarding, failure to provide access for repairs and smoke emanating into neighboring apartments. Petitioner also asserts that the absence of specific dates and times does not render the notice defective.In evaluating the facial sufficiency of a predicate notice in a summary eviction proceeding, “the appropriate test is one of reasonableness in view of the attendant circumstances”. Hughes v. Lenox Hill Hospital, 226 AD2d 4 [1st Dept 1996]. Petitioner is correct in that there is no bright line rule mandating the inclusion of names, dates and specific instances of misconduct in a predicate termination notice. Pinehurst Construction Corp. v. Schlesinger, 38 AD3d 474 [1st Dept 2007]. However, petitioner’s failure to include them here is unreasonable, in light of its smoking and failure to provide access claims, since respondent would need this information to be able to effectively rebut the allegations. Escalera v. New York City Housing Authority, 425 F2d 853 [2nd Cir 1970]. The claim that respondent has created a Collyer’s condition in her apartment is also not properly stated in the predicate notice. This allegation was first made in the notice to cure. The termination notice however simply restates the claims made in the earlier notice without alleging that the condition has not been corrected during the cure period. 31-67 Astoria Corp. v. Landaira 54 Misc. 3d 131(A) [2nd Dept 2017].ConclusionBased on the foregoing, the motion to dismiss is granted.This constitutes the decision and order of the CourtDate: January 4, 2019New York
