Montemuino v. Gelber, 2010-1523 K C.

• Decision Date: 26 October 2011
• Docket Number: 2010-1523 K C.
• Citation: 2011 NY Slip Op 51995
• Parties: Manuel Montemuino, Appellant, v. Michael W. Gelber, Respondent, -and- "JOHN DOE" and "JANE DOE", Undertenants.
• Court: New York Supreme Court — Appellate Term

2011 NY Slip Op 51995

Manuel Montemuino, Appellant,

v. Michael W. Gelber, Respondent, -and- "JOHN DOE" and "JANE DOE", Undertenants.

2010-1523 K C.

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Decision Date: October 26, 2011

PRESENT: : PESCE, P.J., WESTON and STEINHARDT, JJ

Appeals from orders of the Civil Court of the City of New York, Kings County, dated, respectively, November 13, 2009 (Marcia J. Sikowitz, J.) and March 4, 2010 (Gary Franklin Marton, J.). The order dated November 13, 2009, insofar as appealed from, granted tenant's motion to dismiss the petition in a nuisance holdover summary proceeding to the extent of striking various allegations. The order dated March 4, 2010 denied landlord's motion to strike portions of tenant's answer and/or to dismiss tenant's affirmative defenses.

ORDERED that the order dated November 13, 2009, insofar as appealed from, is affirmed, without costs; and it is further, ORDERED that so much of the appeal as is from the portion of the order dated March 4, 2010 which denied the branch of landlord's motion seeking to strike scandalous or prejudicial material from the answer, or seeking, in essence, a more definite statement, is dismissed; and it is further, ORDERED that the order dated March 4, 2010, insofar as reviewed, is affirmed, without costs.

In this holdover proceeding, the notice of termination, annexed to the petition and incorporated therein, set forth numerous allegations of nuisance. Tenant moved to dismiss the petition on various grounds. By order dated November 13, 2009, the Civil Court granted tenant's motion to the extent of striking most of the allegations set forth in the notice of termination, based upon res judicata and failure to state a cause of action for nuisance. The court allowed three allegations to remain, and permitted tenant to serve an answer. After tenant answered, landlord moved to strike various portions of tenant's answer and/or to dismiss tenant's affirmative defenses, which motion the Civil Court denied by order dated March 4, 2010.

The order dated November 13, 2009 correctly dismissed most of the allegations of nuisance. Six of the allegations set forth in the notice of termination were virtually identical to allegations set forth in a notice of termination in a prior nuisance proceeding that landlord had brought against tenant. In that prior proceeding, which terminated in 2005, the Civil Court found, after a trial, that landlord had failed to prove any of the allegations set forth in the notice,and so dismissed landlord's petition. Accordingly, the Civil Court properly struck the virtually identical allegations set forth...