Recitation, as required by CPLR §2219 (a), of the papers considered in review of the instant motion.Papers NumberedNotice of Motion, Affirmation and Annexed (ex. A-D) 1Affirmation in Opposition and Annexed (ex. A) 2Reply Affirmation 3DECISION/ORDER Upon the foregoing cited papers, the Decision/Order on this motion is as follows:PROCEDURAL HISTORYPetitioner commenced this holdover proceeding in April 2018, seeking possession of the subject rent stabilized premises on the basis that Respondent-Tenant Carolyn Waldman (“Respondent”) committed or permitted a nuisance at the subject premises pursuant to RSC §2524.2(b). Petitioner served a Notice of Termination upon Respondents on or about February 26, 2018. Thereafter, the Notice of Petition and Petition was served upon Respondents on or about April 11, 2018.After the N.Y.C. Department of Social Services’ Adult Protective Services program (“APS”) filed a motion, as a friend of the court, for the appointment of a Guardian Ad Litem (“GAL”) for Respondent, Rima Nayberg was appointed as Respondent’s GAL on July 9, 2018. Thereafter, Manhattan Legal Services filed a notice of appearance on behalf of Respondent on October 25, 2018.Respondent, by counsel, now moves for an Order dismissing the petition pursuant to CPLR 3211 §§(a)(1) and (a)(7) for failure to state a cause of action on the basis that the predicate termination notice is too vague and conclusory and, thus, lacks the specificity required by RSC §2524.3(b). Respondent also seeks an award of legal fees and costs.In opposition, Petitioner argues that Respondent’s motion should be denied, since its predicate notice is sufficient to maintain this proceeding in accordance with 9 NYCRR §2524.2 and 9 NYCRR §2524.3.DISCUSSIONWhen considering a motion to dismiss pursuant to CPLR §3211, the court must determine whether the pleadings state a cognizable cause of action or defense. In doing so, the Court must “afford the pleadings a liberal construction, take the allegations in the [pleadings] are true and afford the [pleadings] the benefit of every possible inference”. EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 19 (2005). “The motion must be denied if, from the pleadings’ four corners, factual allegations are discerned which taken together manifest any cause of action [or defense] cognizable at law.” 511 West 232nd Owners Corp. v. Jennifer Realty Co., 98 N.Y.2d 144, 152 (2002), quoting Polonetsky v. Better Homes Depot, 97 N.Y.2d 46 (2001).In a holdover proceeding, the sufficiency of the pleadings in stating a cause of action depends upon the facial sufficiency of the predicate notice, which terminates the tenancy and serves as the basis of the holdover. Chinatown Apts. v. Chu Cho Lam, 51 N.Y.2d 786 (1980). This is particularly true when, as here, the petition incorporates the allegations of the predicate notices. Although failure to service of a proper predicate notice does not divest the court of subject matter jurisdiction [Katz Park Ave. Corp. v. Olden, 158 Misc. 2d 541 (Civ. NY 1983)], a petition predicated on a defective notice must be dismissed for failure to state a cause of action, since a predicate notice is not amendable. Chinatown Apts. v. Chu Cho Lam, supra. See also, Golub v. Frank, 65 N.Y.2d 900 (1985); 520 East 81 St. Associates v. Lenox Hill Hospital, 77 N.Y.2d 944 (1991); Ansonia Associates v. Consiglio, 163 A.D.2d 98 (1st Dept. 1990).According to Section 2524.2(b) of the Rent Stabilization Code,“[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.” 9 NYCRR §2524.2(b).Grounds for eviction under Section 2524.3(b) of the Rent Stabilization Code includes circumstances where“(b) The tenant 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. The lawful exercise by a tenant of any rights pursuant to any law or regulation relating to occupancy of a housing accommodation, including the RSL or this Code, shall not be deemed an act of harassment or other ground for eviction pursuant to this subdivision.” 9 NYCRR §2524.3(b).The standard of review utilized by the courts, upon determining the sufficiency of the factual allegations in a predicate notice, is “reasonableness in view of all attendant circumstances.” Cruz v. Davis, 20 Misc. 3d 1135A (Civ. NY 2008); 297 Lenox Realty Co. v. Babel, 19 Misc. 3d. 1145A (Civ. Kings 2008); Black Veterans for Social Justice, Inc. v. Killeen, 2007 N.Y. Misc. Lexis 982 (Civ. NY 2007). Courts will not uphold a predicate notice unless it sufficiently advises the tenant of the claimed allegations to enable the tenant to prepare a defense. Black Veterans for Social Justice, Inc. v. Killeen, supra.; Domen Holding Co. v. Aranovich, 1 N.Y.3d 117 (2003); 297 Lenox Realty Co. v. Babel, supra. Unparticularized allegations, that are too broad and lack sufficient detail to allow the tenant to prepare a defense, render a predicate notice defective. 157 Broadway Assocs. v. Berroa, 2018 NY Slip Op. 51942U (App. Term 1st Dept. 2018).In stating the facts upon which the claimed nuisance is based, the subject termination notice alleges the following:“A. You have continuously for years harassed your neighbors by screaming threats and obscenities within your apartment and out the apartment window(s), which has caused other tenants to fear for their lives and has interfered with the tenants’ daily lives and routines.B. Management has notified you and your family members on several occasions throughout the years that your behavior must cease. To date, said behavior has only intensified throughout the last several months.C. Specifically, your behavior consists of screaming and yelling at the “top of your lungs.” You have continuously yelled that you will “kill people.” Your screaming continues for lengthy periods of time and consists of threats, random yelling and screaming, and obscenities.D. Many tenants have reported that your behavior is onset by noise, such as construction outside, sirens, or even somebody hanging a mirror by putting a nail in the wall. Immediately after such a noise you begin screaming for long periods of time threats and obscenities. This has caused tenants to tiptoe through their apartments and not do anything within their apartment, as they fear the onset of your screaming.E. Families that live in the building with children have reported that their children fear for their lives.F. Police have been called to your apartment on several occasions.G. Furthermore, you have dialed 311 on numerous occasions throughout the years to report that the building was caving in.H. Numerous tenants in the building have reported and complained of your screaming throughout the years and recently your behavior has gotten so bad that management has been receiving complaints daily.I. Several tenants have moved out of their apartments throughout the years specifically because they feel harassed by your behavior. New tenants in the building have recently threated (sic) to vacate their apartments if nothing is done and sure the owner and management for not reporting your behavior prior to renting the apartment.”In applying the “reasonableness in view of all attendant circumstances” standard of review herein, this Court finds that the subject predicate notice is facially deficient, in that it is too vague and conclusory. The notice does not state a single date or time when the alleged nuisance occurred. Respondent tenancy spans over 30 years. It was incumbent upon Petitioner to specify the dates and time durations of the alleged nuisance as well as the names of the other tenants or staff that complained of the behavior alleged constituting a nuisance. Petitioner’s failure to do so renders the subject termination notice fatally defective. Therefore, it cannot serve as a proper predicate to this proceeding. 340 Clifton Pl. LLC. v. Legette, 2018 NYLJ Lexis 2830 (Civ. Kings 2018); 69 E.M. LLC v. Mejia, 49 Misc.3d 152A (App. Term 1st Dept. 2015); Concourse Green Assocs., LP v. Patterson, 53 Misc. 3d 1206A (Civ. Bronx 2016); Black Veterans for Social Justice, Inc. v. Killeen, supra.; Domen Holding Co. v. Aranovich, 1 N.Y.3d 117 (2003); 297 Lenox Realty Co. v. Babel, supra.; 157 Broadway Assocs. v. Berroa, supra.CONCLUSIONAccordingly, that branch of Respondent’s motion seeking dismissal for failure to state a cause of action pursuant to CPLR §3211 (a)(7) is granted and the petitioner is hereby dismissed, without prejudice. The branch of Respondent’s motion seeking dismissal pursuant to CPLR §3211(a)(1) is denied as lacking merit, as explained herein. Additionally, Respondent’s request for legal fees and costs is denied, as Respondent did not annex an answer asserting a counterclaim for legal fees and provide evidence in support thereof.This constitutes the Decision and Order of the Court.Dated: February 6, 2019New York, New York
