1710 Owners Corp. v. Sussman

Decision Date25 April 2023
Docket NumberIndex No. LT320415-22
Parties1710 Owners Corp., Petitioner v. Madeleine J. Sussman Stephen Hansen Richard Sussman Mary Jay Jones "John" "Doe" "Jane" "Doe" 1710 Avenue H Apartment 3F Brooklyn, New York 11230 Respondent(s).
CourtNew York Civil Court
Unpublished Opinion


Hannah Cohen, J.H.C.

Recitation as required by CPLR 2219(a), of the papers considered in the review of petitioner's motion to dismiss respondent's affirmative defenses and counterclaims and upon such dismissal seeks summary judgment and ensuing opposition.

Papers Numbered

Notice of Motion 1

Opposition 2

Upon the foregoing cited papers, the Decision and Order on this Motion is as follows:

Petitioner 1710 Owners Corp., commenced this holdover proceeding seeking possession of the premises after service of a notice to cure and notice of termination. The premises is a cooperative unit owned by Madeline J. Sussman who does not reside at the premises. An answer was filed by Richard Sussman and Stephen Hansen. Richard Sussman is the son of the lessee Madeline Sussman Stephen Hansen is his partner and both are licensee's of Madeline Sussman.

Respondent Richard Sussman and Stephen Hansen appeared with counsel and asserted the following affirmative defenses in addition to a general denial: (1) all conduct referenced in the notice to cure was cured prior to issuance of notice of termination and the board does not have the right to terminate respondents occupancy; (2) the notice of termination is dated June 9 2022, many months after the notice to cure and is therefore defective; (3) improper service of the notice of petition and petition. Mr. Sussman's attorney verified answer states Richard Sussman was home when service was attempted and no one knocked on Mr. Sussman's door and requests a traverse hearing.

Mary Jones, daughter of Madeline Sussman, who also does not reside at the premises alleges she is attorney in fact of Madeline Sussman and asserts the following affirmative defenses and counterclaims: (1) petition fails to state a cause of action as the alleged acts do not rise to a level of nuisance and do not allege any acts of nuisance by the lessee; (2) any nuisance behavior was cured and a (1) counterclaim for attorney fees.

Petitioner by motion pursuant to CPLR 3211(b) seeks to dismiss respondent's affirmative defenses and counterclaims. Petitioner argues that the cooperative properly terminated the lessee's proprietary lease after calling a special board meeting and giving the licensees an opportunity to present testimony and be heard. Petitioner asserts the cooperative has the authority to terminate the lessee's tenancy for impermissible and objectionable conduct and said occupancy was properly terminated by a vote by the board.

Courts have held on a motion to strike pursuant to CPLR 3211(b) when moving to dismiss or strike an affirmative defense as merit less, the plaintiff bears the burden of demonstrating that the affirmative defense is without merit as a matter of law. McKinney's CPLR 3211(b); Mazzei v. Kyriacou, 98 A.D.3d 1088, 951 N.Y.S.2d 557 (2012);"A party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit" (CPLR 3211[b]; see Galasso, Langione & Botter, LLP v Liotti, 81 A.D.3d 880, 882, 917 N.Y.S.2d 664). "[W]hen moving to dismiss or strike an affirmative defense, the plaintiff bears the burden of demonstrating that the affirmative defense is 'without merit as a matter of law'" (Greco v. Christoffersen, 70 A.D.3d 769, 771, 896 N.Y.S.2d 363, quoting Vita v. New York Waste Servs., LLC, 34 A.D.3d 559, 559, 824 N.Y.S.2d 177). "In reviewing a motion to dismiss an affirmative defense, the court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference" (Fireman's Fund Ins. Co. v. Farrell, 57 A.D.3d 721, 723, 869 N.Y.S.2d 597); Mazzei v. Kyriacou, 98 A.D.3d 1088, 1088-89, 951 N.Y.S.2d 557, 559 (2012); Greco v. Christoffersen, 70 A.D.3d 769, 771, 896 N.Y.S.2d 363, 366 (2010).

The court will address each respondent's affirmative defenses separately.

Mary Jones affirmative defenses:

Respondent Mary Jones's first affirmative defense is a failure to state a cause of action as the allegations do not rise to the level of nuisance as to the lessee. Petitioner asserts that respondent's affirmative defense lacks merit as the proprietary lease has already been terminated and said decision is not subject to review by the court.

In determining whether there is a cause of action fo failure to state a cause of action a court must determine whether accepting as true the factual allegations in the petition and according the plaintiffs the benefits of any favorable inferences, the plaintiff can succeed upon any reasonable views of the facts and whether the pleadings have a cause of action (See Rochdale Village Inc., v Zimmerman, 2 A.D.3d 827 [AD 2nd Dept 2003]). Additionally, the allegations in the pleadings cannot be vague or conclusory (see Stolanoff v Gahona, 248 A.D.2d 525 [AD 2nd Dept 1998]). The standard is not whether a party has artfully drafted the pleadings, but whether deeming the pleading to allege whatever can be reasonably implied for its statements, a cause of action may be sustained (Stending Inc. v Thom Rock Realty co., 163 A.D.2d 46 [1st Dept 1990]). The pleading must be liberally construed and the court must accept the allegations as true (see MBK associated of New York LLv Waddell, 2005 WL 5959961 [NY Co Supreme 2005]). In evaluating the sufficiency of a predicate notice in a summary proceeding, "the appropriate test is one of reasonableness in view of the attendant circumstances." (Oxford Towers Co. LLC v. Leites, 41 A.D.3d 144, 144-145 [1st Dep't 2007]; citing, Hughes v. Lenox Hill Hosp., 226 A.D.2d 4, 18 [1st Dep't 1996], lv denied 90 N.Y.2d 829 [1997]). Thus, a notice which provides "the necessary additional information to enable the tenant respondent to frame a defense ... was therefore adequate to meet the tests of reasonableness and due process." (See, The Jewish Theological Seminary of America v. Fitzer, 258 A.D.2d 337, 338 [1st Dep't 1999]; see also, Rascoff/Zsyblat Org., Inc. v. Directors Guild of Am., Inc., 297 A.D.2d 241, 242 [1st Dep't 2002]); Surfair Equities, Inc. v. Marin, 66 Misc.3d 1216(A), 120 N.Y.S.3d 718 (N.Y. Civ. Ct. 2020). As the petition states a cause of action the respondent's first affirmative defense is stricken. Here petitioner alleges on multiple specified dates, Stephen Hansen permitted an unauthorized individual to access the storage space in the basement and allowed that person to sleep in the space, moved large planters to block ingress/egress to the entry steps of the cooperative, ripped plants out of the garden and spread pesticide on the basement floor, damaged plants, reports of occupants being intoxicated and physically assaulting a shareholder, verbally accosting another resident with abusive behavior, threatening a resident, uprooting a tree in the yard, over turned .planters, removing iron tabletop and hanging base from fence, cutting/destroying plants in the backyard, tampering with video surveillance camera, taking a leaf blower and accusing another shareholder of stealing said item, multiple noise complaints between 12:00 am to 5:00 am and loud shouting on multiple days, Richard Sussman falsely called fire department under another tenant's unit and taking power tools without permission.

As the petition states a cause of action as to the occupants of the unit, respondent's first affirmative defense is stricken.

Respondent's second affirmative defense, that the alleged conduct was cured. Courts have held that once a proprietary lease is property terminated, in is inconsequential whether the conduct has been cured (Rockaway One Co LLC v Califf, 194 Misc.2d 191 [AT 2nd Dept 2002]). Petitioner argues that the proprietary lease does not require a notice to cure, only a notice of termination and any curing is immaterial once the occupancy has been terminated. As such, petitioner's motion to strike respondent's second affirmative defense is granted.

Richard Sussman and Stephen Hansen affirmative defenses:

Petitioner seeks to strike respondent's first affirmative defense of curing timely and lack of authority by the board to terminate respondents occupancy, (2) notice of termination served several months after notice to cure and is therefore untimely;(3) improper service of notice of petition and petition.

Respondent's motion to dismiss based upon curing is denied as the board was not required to permit respondent's to cure as stated above. Upon a vote by the board, the board was authorized to terminate respondents occupancy pursuant to the proprietary lease. Petitioner's motion to dismiss respondent's first and second affirmative defenses are granted.

Respondent's third affirmative defense, disputing proper service and requesting a traverse is denied. Although an attorney may verify an answer if they are in a different county than the respondent, an attorney lacking personal knowledge cannot dispute service. As such, respondent's attorney's assertions of improper service are insufficient to defeat an affidavit of service. It is well settled that affidavits of service attesting the service of process constitute prima facie evidence of proper service unless rebutted by a sworn statement of someone with personal knowledge (Bidetti v Salter, 108 A.D.2d 890 [2nd Dept 1985]. Based upon the foregoing, petitioner's motion to dismiss respondent's third affirmative defense as to jurisdiction is granted.

Petitioner seeks summary judgment pursuant to CPLR 3212 alleging...

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