Gloreen Realty LLC v. Wright
| Decision Date | 14 November 2022 |
| Docket Number | Index No. L&T 306504/21 |
| Citation | 2022 NY Slip Op 33884 (U) |
| Parties | GLOREEN REALTY LLC, Petitioner - Landlord, v. SCOTT WRIGHT Respondent - Tenant "JOHN DOE" AND "JANE DOE" Respondents - Undertenants. |
| Court | New York Civil Court |
Unpublished Opinion
DECISION AND ORDER
Recitation as required by CPLR §2219(A), of the papers considered in the review of Respondent's Motion to Dismiss or in the alternative for Discovery:
Papers Numbered
Respondent's Motion (Numbered 11 -20 on NYSCEF)......................................... 1
Petitioner's Opposition (Numbered 22 - 26 on NYSCEF)........................................ 2
Respondent's Reply (Numbered 27 on NYSCEF) 3
On September 10, 2021, Petitioner commenced this holdover proceeding seeking to evict Respondent based on their alleged breach of a substantial lease obligation by committing or permitting a nuisance at the subject premises. Before Petitioner filed this proceeding, they served a Notice to Cure and a Notice of Termination upon Respondent on June 11, 2021 and July 21, 2021, respectively. The Notice to Cure alleges that Respondent is smoking in their apartment and "allowing the cigarette smoke to emanate into the common areas of the building which is also making its way into other apartments, seriously disturbing other tenants in the building." The notice alleges that the building is a smoke free building and that "numerous tenants are inhaling cigarette smoke in the building due to [Respondent] smoking in [their] apartment," resulting in ''the building being less fit to live in for other occupants and tenants in the building." The Notice of Termination alleges Respondent failed to cure the violation on the basis that management received an additional complaint of "cigarette smoke emanating from [Respondent's] apartment." after the cure period expired.
The proceeding was calendared in Part A on October 15, 2021, and was transferred to Part C, Respondent having already retained Housing Conservation Coordinators, Inc. as counsel. Thereafter, Respondent filed an Answer alleging several defenses including, Petitioner failed to state a cause of action, that Respondent cured the alleged nuisance harassment, and legal fees.
Respondent now moves for dismissal under CPLR 3211, and in the alternative, for discovery and inspection. Respondent argues that Petitioner's predicate notice lacks sufficient specificity and is conclusory. Respondent alleges that Petitioner failed to identify any individual who either observed or was affected by Respondent's alleged behavior. Respondent claims Petitioner failed to alleged any fact which demonstrates how Respondent's conduct disturbed or interfered with other tenants. Additionally, Respondent argues that nuisance requires a continuous invasion of rights, and that Petitioner's notice fails to show objectionable conduct that is recurring, frequent and continuous. Finally, Respondent argues that Petitioner fails to cite to any provision of the lease which prohibits smoking in the apartment. Petitioner in opposition states that their predicate notice was factually sufficient and there is no requirement that the notice must include the exact time of every incident or name every accuser or witness. In support of their claims Petitioner's opposition provided emails which were the source of the complaints alluded to in the predicate notice. In reply, Respondent first argues that Petitioner's predicate notice may not be cured by a later recitation of the offending conduct. Alternatively, Respondent argues that none of the 17 complaints Petitioner provided identify Respondent's apartment as the source of the smoke. Most of the complaints are from one tenant who indicates the smoke source as coming from Apartment 9 and 12, not Respondent's apartment.
In evaluating the factual sufficiency of a predicate notice in a summary proceeding, "the appropriate test is one of reasonableness in view of the attendant circumstance."[5] A notice to cure that forms the basis for a petition initiating a holdover proceeding must set forth sufficient facts to establish the grounds for the tenant's eviction."[6] The alleged defaults must be stated with particularity, so that the tenant may know what to defend against and how to impose valid legal defenses against the landlord's claim."[7] Those facts must be case specific ... instead of generic or conclusory statements.[8] There is no ''absolute requirement" that specific facts such as dates, times and individuals involved be included in the predicate notice, but failure to provide such specific facts is a relevant consideration.[9]
Petitioner's Notice to Cure fails to identify any individual who complained to Petitioner about Respondent's conduct. They fail to allege any apartments which were affected by Respondent's alleged smoking. Petitioner simply alleges in conclusory language that Respondent's smoking made the building "less fit to live;" and ''seriously disturbed other tenants in the building." Petitioner's Notice to Cure fails to provide any specific factual allegation supporting these conclusions. The "notice to cure makes clear that Petitioner although in possession of complaints from specific tenants, chose to serve a notice replete with generalizations rather than a notice alleging with specificity the conduct of which it complains."[10] Petitioner rightly states that there is no requirement that the notice must include the exact time of every incident or name every accuser or witness. However, Petitioner fails to allege any individuals or identify any apartments affected for even one allegation. "If at least some allegations were set forth with specificity, the [Notice to Cure] may have been sufficient."[11] Petitioner's failure to include them here is unreasonable, considering this information would be required so as Respondent could provide a meaningful...
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