Recitation, as required by CPLR §2219(A), of the papers considered in the review of Respondent’s motion to dismiss the Petition pursuant to CPLR §3211(a)(2)(5)(7): Papers NYSCEF Doc.# Notice of Motion and Affidavits Annexed 14-20 (seq.2) Order to Show Cause and Affidavits Annexed Answering Affidavits 28-30 Reply Affidavits 31, 32 DECISION/ORDER Upon the foregoing cited papers, the Decision/Order on these Motions are as follows: Relevant Procedural History On or around February 23, 2021, petitioner served Paul Miller (“respondent”) with a Notice of Termination. The Notice of Termination alleges respondent is engaging in objectionable conduct and committing or permitting a nuisance in the subject building and respondent’s behavior is substantially interfering with the comfort and safety of the landlord, its employees, and other tenants in the building. Upon expiration of the Notice of Termination, petitioner served respondent with a Notice of Petition and Petition dated March 23, 2021. Respondent filed a Hardship declaration, and the proceeding was stayed. Respondent retained counsel in late January 2022, and the matter was adjourned several times for Adult Protective Services (“APS”) intervention. In or around May 2022, APS rejected respondent’s request for assistance claiming HRA was involved in respondent’s case. Respondent then moved by notice of motion to dismiss the Petition based on CPLR §3211(a)(2), (a)(5) and (a)(7). Respondent argues the acts alleged in the Petition and the Notice of Termination do not rise to the level of nuisance behavior and as such the proceeding must be dismissed pursuant to CPLR 3211(a)(7). Respondent asserts the acts described in the Petition and the Notice of Termination do not allege an adequate number of incidents to establish a “pattern of continuity or recurrences” and that the incidents alleged are a hodgepodge of disparate, isolated, and unrelated incidents. Respondent relies on Tzifil Realty Corp. v. Rodriguez, 66 Misc 3d 1208(A) (Civ Ct NY Cty 2019) aff’d, 73 Misc 3d 138(A) (App Term 1st Dept 2021) and W. Side 95 Manor Assocs. v. Braxton, 11 Misc 3d 1069(A) (Civ Ct NY Cty 2006). Respondent also argues the allegations in the Notice of Termination are impermissibly vague and lack sufficient detail for respondent to be able to formulate a sufficient defense and must be dismissed pursuant to CPLR §3211(a)(2). Lastly, respondent argues the allegations in the Notice of Termination which refer to incidents from 2012, were already litigated in a prior case and as such, the proceeding must be dismissed pursuant to CPLR §3211(a)(5). The 2012 proceeding was discontinued with prejudice and the parties agreed they “would not file or participate in any charges, grievances, or lawsuits…arising out of or concerning facts documentation, claims, or issues which [had] been the subject of this proceeding.” Respondent argues under the doctrine of res judicata, petitioner is barred from relitigating these issues and the current proceeding must be dismissed. In opposition, petitioner argues that respondent’s motion should be denied in its entirely because the acts stated in the pleadings do rise to the level of nuisance. Petitioner asserts the pleadings herein state a valid cause of action for nuisance. Respondent’s behavior endangers the comfort and safety of other tenants in the subject building in an ongoing and persistent manner. Petitioner further argues that the pleadings, more specifically, the Notice of Termination provides sufficient detail for respondent to be able to formulate a defense. The Notice herein does not merely recite the language of the statute. Lastly, petitioner argues the pleadings do not rely on the same conduct that was the basis of the 2012 holdover proceeding but the 2012 conduct was inserted in the Termination Notice to make the court aware of a prior set of circumstances committed by respondent. The conduct that occurred from 2018 through 2020 provides the basis for petitioner’s cause of action for nuisance. Motion to Dismiss On a motion to dismiss for failure to state a cause of action pursuant to CPLR §3211(a)(7), the standard and sole criterion the court must consider is whether the pleading states a cause of action, and whether the factual allegations asserted from the four corners of the pleadings taken together manifest any cause of action cognizable at law (See, Guggenheimer v. Ginzburg, 43 NY2d 268, 275 [1977] Leon v. Martinez, 84 NY2d 83, 88;) “Whether a plaintiff can ultimately establish its allegations is not part of the calculus” (Sokol v. Leader, 74 AD3d 1180 [App Div, 2nd Dept, 2010]; see EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11 [2005]). The pleadings must be afforded a liberal construction (see, CPLR §3026). “We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v. Martinez, 84 NY2d 83, 87 [1994]; see also, Morone v. Morone, 50 NY2d 481, 484; Rovello v. Orofino Realty Co., 40 NY2d 633, 634). “However, allegations consisting of bare legal conclusions, as well as factual claims inherently incredible or flatly contradicted by documentary evidence are not entitled to such consideration” (Caniglia v. Chicago Tribune-N.Y. News Syndicate, 204 AD2d 233, 233-234 [App Div, 1st Dept 1994]; see also Skillgames, LLC v. Brody, 1 AD3d 247, 250 [App Div, 1st Dept 2003]). Herein, the court finds that the Notice of Termination and Petition sufficiently state a cause of action for nuisance (RSC §2524.3(b)). The Notice of Termination alleges respondent engaged in objectionable behavior from January 2018 through November 2020. More specifically, the Notice states: On November 21, 2020 starting at 1:19 a.m., you began using a mallet or other blunt instrument to bang on your ceiling in patterns moving about the complaining tenant’s floor above.” A few minutes later, you were observed storming about the common corridor and stairwell, banging the mallet against the wall stairwell poles and marble stairs.” While screaming and cursing for the residents to open the door, you began striking the entrance door to Apt. 4B with great force and then with the mallet, leaving multiple pound marks in the metal door.” You were then escorted in handcuffs by the New York City Police Department from the building at approximately 1:55 a.m. You harassed the residents of Apt. 4B on October 18, 2020 — screaming banging demanding the door be opened. On at least two other occasions in September 2020, you also targeted the residents of the apartment above yours pounding on the door in a drunken state. In June 2019 emergency medical technicians discovered you passed out in the subject apartment after the fire department was called because of a severe water leak you caused by neglecting an open tap and overflowing sink. In 2018, petitioner alleges a number of incidents of respondent calling the superintendent between the hours of 1:00 a.m. and 5:00 a.m. accusing him and other residents of trying to poison you. Petitioner alleges a number of other incidents and asserts that respondent’s objectionable behavior regarding Apartment 4B was so severe that the tenants in 4B were “fearful of their lives and were unable to reside in the apartment.” The court in taking all of the allegations in the Notice of Termination and Petition as true and affording the pleadings a liberal construction finds petitioner states a valid cause of action for nuisance. Although respondent argues specifically against the alleged incidents and asserts the incidents are a hodgepodge of individual events that do not rise to the level of nuisance, the court finds respondent’s arguments unavailing. Moreover, the court finds several of the allegations stated are disturbing and serious. Additionally, the court is bound by the prevailing case law. In Domen Holding Co. v. Aranovich, 1 NY3d 117 [2003], the Court of Appeals held that a notice which provides fact-specific examples of the occupant’s conduct and details of his use of profanity, racial epithets, and threats of violence against his neighbors was sufficient. The Court also found that three incidents in three separate years was sufficient to state a cause of action. In this case, respondent’s objectionable conduct against his neighbor included incidents three months in a row in 2020 and his behavior was not limited to just those three listed instances. In Frank v. Park Summit Realty Corp., 175 AD2d 33 (App Div 1st Dept 1991), the court held that a landlord should be permitted to abate the nuisance of a physically threatening and verbally abusive occupant in order to protect its innocent tenants, its staff and itself. (See also, Copart Indus. v. Consolidated Edison Co. of N.Y., 41 NY2d 564 (1977). The court also finds the Notice of Termination herein is sufficiently detailed for respondent to be able to formulate a defense and petitioner’s inclusion of the details from the 2012 proceeding does not render the Notice defective. Consequently, petitioner is not restricted in maintaining this proceeding due to a theory of res judicata. Ultimately, petitioner has stated a valid cause of action sufficient to maintain this proceeding. Conclusion Therefore, respondent’s motion to dismiss is denied in its entirety. Respondent shall file an Answer by November 30, 2023. The matter shall be restored to the court’s calendar on December 5, 2023, Part H, Room 830 at 10:30 a.m. for settlement or trial. The parties shall appear in person. This constitutes the decision and order of the court. Dated: November 13, 2023
