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 Exhibits Annexed 2Replying Affirmation and Exhibit Annexed 3DECISION/ORDER UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS:Petitioner commenced this nuisance holdover proceeding pursuant to RSC 2524.3(b) based on the allegations in the predicate notice to cure. The notice to cure states respondent violated the RSC by the following acts:a. Improperly disposing of garbage outside the Premises, causing the owner to receive tickets from the NYC Sanitation Department and causing the other tenants to be exposed to waste outside their apartment;b. Using the space outside the Premises to fix cars, causing the outside of the Premises and the inhabitants of the Premises to be exposed to chemicals found inside cars;c. Causing caused excessive noise or allowing others residing in the Premises to cause excessive noise, including, but not limited to, after 11 pm, causing other tenants and the owner (who resides in the building) to lose sleep;d. Allowing water to overflow from the Premises into other apartments and parts of the building, causing water damage and other property damage to the Premises;\e. Smoking, and/or permitting others residing in the Premises to smoke, causing other tenants and the owner to be exposed to tobacco smoke.The predicate notice to cure states that in order to cure the nuisances, the respondent must do the following within ten days:Remove all improperly disposed of garbage outside the Premises and proceed to only dispose of garbage in designated garbage bags and barrels;Cease all car repairs and remove all materials used for said repairs, as well as any cars which are currently being repaired.Cease causing or permitting others to cause noise that it is audible to and/or disturbing to the other tenants in the building (beyond reasonable, daily living noises).Pay $400.00 to the landlord for the water damage caused by your permitting the water to overflow.Cease smoking, and/or permitting others residing in the Premises to smoke, causing other tenants and the owner to be exposed to tobacco smoke.The predicate Fifteen (15) Day Notice of Termination repeats the allegations stated in the cure notice, and adds one date in paragraph (4): “In or about January 2018, you allowed water to overflow from the Premises into other apartments and parts of the building, causing water and other property damage to the Premises, in violation of 9 NYCRR 2524.3(b).” The notice to terminate states that respondent failed to cure the allegations of nuisance behavior, but it fails to state one act of nuisance that occurred after the notice to cure was served. The termination notice fails to allege that the nuisance behavior continued after the cure notice. The notice to cure requires payment of 400.00 to the landlord for property damage. The notice to cure fails to contain any dates or times the nuisance behavior occurred in this ten (10) year tenancy. The notice of termination contains one date in paragraph (4) wherein it states,In or about January 2018, you allowed water to overflow from the Premises into other apartments and parts of the building, causing water and other property damage to the Premises, in violation of 9 NYCRR 2524.3(b)Respondent Priscilla Boateng filed an answer interposing affirmative defenses and counterclaims including retaliatory eviction, defective predicate notices, breach of the warranty of habitability, and harassment.Respondent moves by notice of motion for an order dismissing the petition pursuant to CPLR 3211(a)(7) for failure to state a cause of action due to deficiencies in the predicate notices. Respondent seeks a trial date for her counterclaims. Respondent Priscilla Boateng states in her affidavit in support of her motion that she is the tenant of record for apartment #1 at the subject address, and she has lived there for ten years. The premise is a three story building with a converted basement apartment. Petitioner resides in one of the third floor apartments. Apartment 1 is an apartment with two bedrooms, and two bathrooms. Respondent rents one of the bedrooms directly from the landlord, and she shares the room with her three minor children. Respondent’s rental agreement includes one bedroom, one bathroom, and a shared kitchen with another tenant. She shares the kitchen with George Abusi, who has an independent rental agreement with the landlord.Respondent states that Maxwell Owusu is her husband and the father of her three minor children. Mr. Owusu moved into the apartment over ten years ago, and respondent moved in shortly after in 2007. Mr. Owusu rented the same room respondent now rents with her children. They separated in 2016, and Mr. Owusu no longer resides in the subject unit. He does come to the apartment during the day to take care of their children while respondent is at work. When she first moved into the premises, a tenant named Richard rented the second bedroom directly from the landlord, and when he moved out, George Abusi moved in. At the end of 2016 respondent asked the landlord for a lease which she needed to complete her certification for food stamps. Petitioner provided a lease for $600/month from January 1, 2017 to December 31, 2018. (Exhibit A)Respondent notified the landlord about numerous serious conditions in the unit, and when the conditions were not corrected, respondent called DHPD, who placed five “B” violations. In response, petitioner filed L&T 93368/17, alleging respondent did not have a lease. HPD placed a violation for an illegal apartment in the basement near the boiler, and vacate order was issued for the basement, dated January 4, 2018. Respondent believes that petitioner blames her for losing rental income from the basement apartment. Respondent states that petitioner filed two more eviction proceedings against her in retaliation for respondent’s complaints to HPD. Respondent states she never disposed of garbage improperly, and she always places the trash in the bins. Sometimes the bins are full, and she places the garbage next to the bins.Respondent states she does not know how to fix cars, and she has never fixed cars in front of the subject premise. Her husband, Maxwell Owusu, is a mechanic, and in the past he has worked on the petitioner’s car, at the petitioner’s request in the driveway. Respondent states the last time Mr. Owusu worked on petitioner’s car was in 2009, when the landlord paid him to replace her brakes. Respondent states she has never received complaints about excessive noise coming from her apartment. She states she has no knowledge of water damage coming from her apartment, or an overflow incident in January 2018. HPD has never placed violations for water damage. Respondent states she does not smoke cigarettes or any tobacco products. She states her lease does not prohibit smoking in the apartment, and states she does not smoke. Respondent states that for the first ten years of her tenancy, petitioner never complained about any behavior by respondent or her family. After she called HPD in 2017, and began withholding rent due to conditions, petitioner commenced this holdover proceeding.Respondent argues that both the notice to cure, and notice to terminate fail to state any dates or times that the offending behavior occurred. Respondent denies engaging in any of the offending conduct of water flooding, putting trash in the wrong place, repairing cars on the driveway, and making noise, and states she has never received complaints about any behaviors affecting petitioner or other tenants. There are no dates and times stated in the predicate notices, and respondent cannot fashion a defense to these claims. The notice to cure requires respondent to pay the landlord $400.00 for property damage in order to avoid a termination notice and an eviction proceeding. Respondent has lived in the subject apartment for ten years, and there is no time frame for the alleged offending behavior.In opposition to the motion, petitioner fails to attach an affidavit from anyone with personal knowledge. As an explanation for petitioner’s failure to provide dates and times, petitioner’s counsel states that the landlord”…could not be expected to keep a rolling journal,” and that petitioner described the offending behavior”…in as much detail as Petitioner had available or was able to recall.”DiscussionEvery petition shall state the facts upon which it is based. RPAPL Section 741(4)Rent 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…The petitioner does not have to prove its prima facie case in the predicate notice, and “…with respect to the adequacy of the notice, 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) lv to appeal den’d 90 NY2d 829 (1997). 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) lv to appeal dismissed in part and den’d in part 99 NY2d 573 (2003)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). 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)In a holdover based on an alleged breach of lease, the termination notice must contain specific mention that the breach has not been cured. 31-67 Astoria Corp v. Landaira, 54 Misc3d 13(A) (AT 2nd Dept, 2017). See also 1025-45 Associates Inc v. Tate NYLJ 8/2/2017 p 31 (Civ Ct, Kings Co); Ciampa Bell v. Han, NYLJ 8/23/2017 p 35 (Civ Ct, Queens Co); Reinozo v. Eskander NYLJ 8/2/2017 p 33 (Civ Ct, Queens Co.); H&N Equities LLC v. Sanchez, NYLJ 8/4/2017 p 41 (Civ Ct, Queens Co.); Hew-Burg Realty v. Mocerino, 163 Misc 2d 639 (Civ Ct, Kings Co, 1994); 76 West 86th Street Corp v. Junas, 55 Misc 3d 596 (Civ Ct, NY Co, 2017); and CDC East 105th Street Realty LP v. Mitchel, NYLJ 5/10/2017, p 39 (Civ Ct, NY Co.) A defective notice cannot be amended and the proceeding must be dismissed Chinatown Apts., Inc. v. Chu Cho Lam, 51 NY.2D 786 (1980)A termination notice that fails to set forth the facts upon which the landlord relies for eviction is defective. 31-67 Astoria Corp v. Landaira, 54 Misc3d 131[A], (App Term, 2nd Dept, 11th & 13th Jud Dists, 2017) The predicate notices fail to give the tenant sufficient details, such as the alleged times and dates of the occurrences, to allow the tenant to prepare a defense. Although exact dates are not always required to state a nuisance, the allegations herein fail to adequately allow the tenant to prepare a defense, and the petition shall be dismissed. Montemuino v. Gelber, 33 Misc3d 133[A], (App Term, 2nd, 11th & 13th Jud Dists, 2011)Based on the foregoing, the respondent’s motion to dismiss the petition is granted, and the petition is dismissed. The proceeding is adjourned to March 18, 2019, 9:30 a.m.. Part G, for a trial on the respondent’s counterclaims. This constitutes the decision and order of the court.Dated: February 20, 2019
