297 Lenox Realty Co. v Babel (2008 NY Slip Op 51168(U))

297 Lenox Realty Co. v Babel

2008 NY Slip Op 51168(U) [19 Misc 3d 1145(A)]

Decided on June 10, 2008

Civil Court Of The City Of New York, Kings County

Kraus, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

BACKGROUND

This summary holdover proceeding was commenced by 297 LENOX REALTY COMPANY ("Petitioner") and seeks to recover possession of Apartment 4G, at 297 Lenox Road, Brooklyn, New York, 11217 ("Subject Premises") from the rent-stabilized tenant of record, ELSA BABEL ("Respondent") based on allegations that she has created a nuisance in the subject premises. The petition alleges that Elsa Babel has been the rent-stabilized tenant of record since 1984, and that she is a senior citizen.

This proceeding was commenced by issuance of a 10 Day Notice to Terminate dated January 17, 2008 ("Predicate Notice"), terminating Respondent's tenancy as of February 5, 2008. The proceeding was initially returnable on April 2, 2008. Respondent requested an adjournment to obtain counsel. On or about April 22, 2008, The Legal Aid Society, Brooklyn Office for the Aging, appeared on behalf of Respondent, and moved for dismissal based on alleged defects in the Predicate Notice. On or about June 4, 2008, the motion was marked submitted for the Court's determination, and decision was reserved.

Respondent moves for dismissal based on her claim that the Predicate Notice fails to state the grounds on which the proceeding is based, the facts necessary to support Petitioner's claim, and because Petitioner failed to serve a Notice to Cure.

The Predicate Notice alleges that Respondent is "permitting and/or committing a nuisance" by "gross negligence" which substantially damages the accommodation and interferes with the comforts and safety of other tenants. The Predicate Notice further provides:

a)In or about 2005 and on numerous occasions thereafter, you have been engaging in anti-social, disruptive, destructive, and/or dangerous behavior in the building, in violation of Paragraphs 15 and 20(1) of your Lease Agreement and the Building Rules and Regulations of your Lease Agreement. You have made numerous false claims against other tenants for no apparent reason. You have accused another tenant of tapping into the electricity in your apartment, stealing your personal belongings, as well as other accusations. You are in mediation [*2]with regard to these alleged complaints which were in fact dismissed. The New York City Police Department has appeared at your apartment on numerous occasions based on your unfounded complaints.

The Rent Stabilization Code provides that a Notice of Termination

".. Shall state the ground under section 2524.3 or 2524.4 of this Part, upon which the owner relies for removal or eviction of the tenant" and "..the facts necessary to establish the existence of such ground..." 9 NYCRR § 2524.2(a). The Predicate Notice states it is given pursuant to the Respondent's Lease and "... Sections 2524.2 and 2524. 3 of the Rent Stabilization Code." The Predicate Notice does not specify which subsection this proceeding is based on, although the notice appears to be based on the theory that Respondent is committing a nuisance.

Moreover, the Predicate Notice purports to be based both on a lease violation or under the statutory provisions of the Rent Stabilization Code, however, it is conceded that no notice to cure has been served herein.

"... (T)he appropriate standard for assessment of the adequacy of notice is one of reasonableness in view of all attendant circumstances." Hughes v. Lenox Hill Hospital, 226 AD2d 4 (1st Dept., 1996). The notice must be definite and unequivocal. The defaults must be stated with such particularity, that the tenant will be able to understand the specific claim, and present a defense. Carriage Court Inn Inc. v. Rains, 138 Misc 2d 444 (Civ. Ct., NY Co., Gangel-Jacob, J.).

The Court finds that the Predicate Notice does not meet these standards, and is insufficient to serve as a basis for the underlying proceeding.

The Predicate Notice does not make reference to any specific dates or times, but provides only that the conduct commenced "(i)n or about 2005 , and on numerous occasions thereafter ...".

It is true that there is no absolute requirement that a notice contain dates and times of incidents alleged, and that a failure to include those specifics does not mean that the notice will be deemed defective as a matter of law. See eg City of New York v. Valera, 216 AD2d 237 (1995). However, in determining whether reasonable notice has been given under the circumstances, the issue of failing to include dates, times and other specifics is still a relevant consideration.

In this case, where the behavior is alleged to have commenced approximately three years prior to the issuance of the Predicate Notice, and the nature of the conduct alleged is not such that it is continuous and ongoing, but is subject to identification by specific dates or times, the Court finds that the failure to include more detail regarding what exactly happened, when it happened, and who was involved is unreasonable.

Predicate Notices in nuisance based holdover proceedings, where the alleged conduct is subject to being specifically identified by date and time, have been held fatally defective for failure to include such specifics.For example, in Carriage Court Inn Inc. v. Rains, supra, the Court held that "(m)erely positing many occasions' of abusive' dealings with other residents ... constitute(d) conclusory assertions rather than the required facts." Id. at 446. [*3]

The Court further noted that, to the extent the notice did include a specific factual allegation about behavior, it was still defective for failing to state the date and time that the behavior was alleged to have occurred, as well as, identify the individuals involved. Id. See also, 728 Property Assocs. v. Millard, N.Y.L.J., Aug. 29, 1990, p. 22, col.4 (Civ. Ct., NY Co., Tolub, J.)(notice failed to set forth with particularity facts necessary including specific dates and was instead based on conclusory assertions) ; Foster Arms Apts. Corp., v. Schreiber, N.Y.L.J., June 6, 2001, p.24, col.5 (Civ. Ct., Kings Co,. Chin, J.)(failure to identify specific incidents and specify specific times and dates rendered notice defective); Concourse and 181st Street Corp. v. Bligen, May 10, 1989, p.24 col.3 (Civ. Ct., NY Co., Wendt, J.)(notice should have specified date on which the alleged conduct occurred).

The only incidents the Predicate Notice contains, that do not constitute conclusory allegations, are that Respondent has accused another tenant of tapping into her electricity, stealing personal belongings, and calling the police. Unlike other types of behavior where the conduct is continuous, ongoing and not readily susceptible to identification by date and time, the incidents referred to in the Predicate Notice should be readily identified by date and time. How many tenants has Respondent complained of? One tenant or more? When in the three years between the alleged commencement of this behavior and the issuance of the Predicate Notice did these incidents occur? Were those three complaints against one person at one time or completely separate incidents?

If the period of time between the commencement of the behavior and the commencement of this proceeding were not so extensive, perhaps the failure to include more specifics would not be so unreasonable that the notice would be rendered fatally defective. However, without knowing the parties involved, the number of incidents, or when over the three years this conduct is alledged to have occurred, the picture of the conduct complained of is vague and the lack of specificity puts Respondent at an unfair disadvantage in defending against Petitioner's case.

Moreover, the specifics, as far as the individuals involved and the dates behavior occurred, are not included for even one single allegation. If at least some of the allegations were set forth with specificity, the Predicate Notice may have been sufficient. For example, in Domen Holding Co. v. Aranovich, 1 NY3d 117 (2003) the behavior allegedly commenced in 1995, but the notice of termination was not issued until October 2000. While clearly not all occurrences during the five year period were identified by date, time and individuals involved, several of the incidents that occurred were identified with such particularity.

The Court of Appeals emphasized in its decision that the notice in Domen identified the names of other individuals affected by the tenant's behavior, the dates, a description of the misconduct that occurred, and police complaint numbers. The notice provided all such details for at least three specific incidents that occurred over the five year period. The first detailed incident was in 1995, followed by a second detailed incident in 1997, and a third in 2000, shortly prior to the commencement of the proceeding. At least some indication was given, as to what occurred during the five year period at issue, and when the most significant of those events took place over that five years, as well as the identity of the persons involved and reference to documentary corroboration by providing the numbers of the complaints made to police.

After identifying those three specific incidents with such particularity, the notice then went on to allege that the tenant's behavior was not limited to those instances, and that the tenant generally instigated arguments and altercations with others in the building. The combination of the detailed account of several specific incidents, along with the allegation that this behavior was [*4]ongoing was sufficient for the Court of Appeals to hold "While the incidents detailed in the notice occurred over a five year period, their severity and the circumstances under which they allegedly took place tend to support plaintiff's contention that (respondent) displays intolerance and aggression towards those living and working within the building." Domen Holding Co., supra at 124-125.

The lack of specificity in the Predicate Notice, the failure to cite the specific provision of the code upon which this proceeding is based, the reference to the fact that the proceeding is also based on breach of lease, and the extensive time between the commencement of the alleged behavior and the commencement of this proceeding all lead this Court to find that the Predicate Notice was not specific enough or reasonable under the circumstances to terminate the tenancy of Respondent, a senior citizen who has been the rent-stabilized tenant of record of the subject premises for over 24 years.

Based on the foregoing, the Court need not reach the issue of the failure to serve a Notice to Cure. Respondent's motion is granted, and the proceeding is dismissed without prejudice.