Recitation, as required by CPLR 2219(a), of the papers considered in review of respondent’s order to show cause:Papers NumberedRespondent’s motion to dismiss 1Petitioner’s opposition 2DECISION AND ORDER In this summary holdover proceeding petitioner alleges that respondent has breached a substantial obligation of her tenancy and has failed to cure such breach after service of a ten day notice to cure and has violated the Rent Stabilization Code. The basis for these claims is that respondent has allegedly permitted and/or committed a nuisance in the subject premises by making noise and disturbing and annoying other tenants. Both parties are represented by counsel.Respondent moves for dismissal for failure to state a cause of action. Respondent sets forth a number of salient facts and legal citations in support of dismissal of the petition. Respondent argues that the conduct alleged by petitioner does not meet the definition of nuisance conduct. Courts have defined nuisance as a recurring course of conduct: “[n]uisance imports a continuous invasion of rights — ‘a pattern of continuity or recurrence of objectionable conduct’” Domen Holding Co. v. Aranovich, 1 NY3d 117 (2003), and conduct of nature that is unlikely to be cured. Respondent is a 79 year old rent stabilized tenant who has lived in her apartment for some 38 years. The notice to cure was served in May 2018. It alleges incidences of nuisance conduct for a short period of time — only from April to May 2017 and then September to December 2017. Despite this lengthy tenancy there are no allegations of nuisance conduct prior to May 2017. Moreover, the notice to cure does not indicate any allegation of nuisance conduct since the end of 2017. The June 2018 notice of termination does not indicate a single additional specific allegation of nuisance conduct after the June 9, 2018 expiration date of the notice to cure. This proceeding was not commenced until October 2018 while the last incident of nuisance conduct was alleged to have occurred in December 2017.As a result, respondent argues that the petitioner has failed to demonstrate a continuous and ongoing pattern of conduct sufficient to plead a nuisance. Respondent cites 780 Pelham Parkway Assocs v. Roth, NYLJ, April 25, 1990, p 23, col 4 (Civ Ct, Bronx County) which held that nuisance proceedings should lie “Where the misconduct becomes persistent and continues, and there appears to be either a lack of desire or ability on the part of the tenant to prevent or control the objectionable conduct…” Under this standard, respondent concludes that this proceeding should not lie.Respondent also argues that the notice of termination is legally insufficient to state a cause of action because it does not include any new specific incidents of nuisance conduct following the end of the cure period. Courts have dismissed cases for deficient predicate notices where the notice of termination did not allege new facts that exhibit misconduct or breach that occurred subsequent to the termination of the cure period. 31-67 Astoria Corp v. Landaira, 54 Misc3d 131 (A) (App Term, 2nd Dept 2017); Hew-Burg Realty v. Mocerino, 163 Misc 2d 639 (Civ Ct, Kings County 1994); 76 West 86th Corp v. Junas, 55 Misc3d 596 (Civ Ct, New York County 2017); CDC E 105th St Realty v. Mitchel, NYLJ 1202785511936, at *1(Civ Ct, New York County 2017); 260-262 St. James Investors LLC v. Ford NYLJ 1202780678402, at *1 (Civ Ct, Kings County 2016); Third Housing Co, Inc v. Velez, NYLJ 1202787007020, at *1 (Civ Ct, Queens County 2017); Second Housing Co, Inc v. Davis, NYLJ 1202772251405 (Civ Ct, Queens County 2016); See also, 1025-45 Associates Inc v. Tate, NYLJ 1202794404370, at *1 (Civ Ct, Kings County 2017); Volunteers of America v. Johnson, NYLJ 1202784918482, at *1 (Civ Ct, Kings County 2017); Webster Bldg A LLC v. Mitchner, 2018 NYLJ LEXIS 2623 (Civ Ct, Bronx County 2018); and this court’s decisions in 340 Clifton P1 LLC v. Legette, NYLJ (Civ Ct, Kings County 2018); BEC Continuum Owners v. Taylor, 2018 NYLJ LEXIS 1821 (Civ Ct, Kings County 2018). In light of these decisions, the court declines to follow the lower court holding in Village Mgt Inc v. Silva, NY Slip OP 51352(U) (Civ Ct, New York County 2018) which holds that a notice of termination is effective if it simply incorporates the notice to cure by reference.Here, the June 19, 2018 notice of termination does state more than merely incorporating the notice to cure:You have failed to cure your conduct after the Notice of Cure expired on June 9, 2018. You advised management you would continue your behavior as long as you had any issues with any future tenant. You continue to yell and scream at other tenants in the building on a daily and continuous basis since the Notice of Cure expired.Nevertheless, the notice of termination does not state any specific alleged acts of nuisance conduct after expiration of the cure period. As petitioner indicates and the court notes, petitioner’s notice to cure alleges 15 specific dates, times and occurrences whereby respondent allegedly caused a disruption in the building, contacted the New York Police Department to lodge complaints against tenants and caused noise which was annoying and disturbing to other tenants. However, the court also notes that the notice of termination significantly does not set forth a single specific date, time or occurrence of alleged nuisance conduct of respondent after the expiration of the cure period.While there is no absolute requirement that the notice contain dates and times of the alleged incidents, where the alleged conduct is subject to being identified by date and time, it may be found fatally defective for failure to include such information. See 297 Lenox Realty Co. v. Babel, 19 Misc 3d 1145(A) (Civ Ct, Kings County 2008), analyzing City of New York v. Valera, 216 AD2d 237 (1995) and Carriage Court Inn Inc. v. Rains, 138 Misc 2d 444 (Civ Ct, New York County 1988). Given the nature of the allegations here and the numerous dates, times and occurrences set forth in the notice to cure, it would follow that any alleged nuisance conduct occurring after the expiration of the cure period would be subject to being identified by date, time and occurrence. Yet, this was not the case.Furthermore, petitioner points to the difference between 76 West 86th Corp v. Junas, supra, in which the notice of termination was dated only two days after the expiration of the notice to cure and this case, in which there were over three weeks between the expiration of the notice to cure and service of the notice of termination. First, not all the above cited decisions dismissing the petition involved a short time between the expiration of the notice to cure and the notice of termination (see, BEC Continuum Owners v. Taylor, supra).Second, and more directly, the fact that three weeks passed between expiration of the notice to cure and the service of the notice or termination works against petitioner’s argument. Given the period of three weeks, petitioner had more than enough time to ascertain and plead any specific dates, times and occurrences of respondent’s allegedly continuing nuisance conduct during said period, but failed to do so. Nuisance conduct is of the type of conduct which requires particular specificity. Without sufficient particularity it is difficult for respondent to mount a defense as to alleged objectionable conduct after expiration of the cure period, which would be the crux of the case at trial. See, Giannini v. Stuart, 6 AD2d 418 (App Term, 1st Dept 1968).Accordingly, for the above reasons, respondent’s motion is granted and the petition herein is dismissed.This constitutes the decision and order of the Court.Dated: April 9, 2019Brooklyn, New York
