In this holdover proceeding, the respondent-tenant moves to dismiss the proceeding on the ground that the predicate notices (Notice to Cure and Notice of Termination) are defective, in that they do not state the specific dates and times of the alleged lease violations and nuisance. The petitioner opposes the motion, arguing that the notices contain sufficient specifics of the claimed lease violations and nuisance caused by the tenant.

This is a tenancy governed by the Emergency Tenants Protection Act (ETPA). The tenant was first served with a 10 day Notice to Cure dated December 28, 2007, which was predicated on the tenant's alleged violation of a substantial obligation of the tenancy. The facts supporting the allegation in the notice state:

"You have been keeping your apartment in an extremely unsanitary, unhealthy and unclean manner, in violation of Paragraphs 9, 11 and 12 of your Lease Agreement and the Building Rules and Regulations. There is extremely unsanitary housekeeping in your apartment. This conduct includes, but is not limited to: the following:

1. The walls and floors throughout the apartment are extremely dirty and grimy.

2. The kitchen appliances and fixtures are extremely dirty and grimy.

3. The bathroom fixtures are extremely dirty and grimy.

4. There are boxes, bags, papers and debris piled throughout the entire apartment.

5. There is roach and vermin infestation throughout the entire apartment. The roach and vermin infestation is so bad that roaches were observed crawling on the walls and floors throughout the apartment. You have been leaving dirty food [*2]and clothing throughout the apartment causing an influx of roaches and vermin. The conditions in your apartment are so unhealthy and unsanitary that an inspection of the premises by the New York State DHCR failed to meet standards partially due to the poor housekeeping."

The notice further stated that the tenant had until January 13, 2008 to cure the above mentioned violations, or legal proceedings would be commenced to terminate the tenancy.

The tenant was then served with a 30 day Notice to Terminate dated February 28, 2008, which required the tenant to vacate the premises by March 31, 2008. The termination notice stated the tenant had failed to cure the grounds noted in the Notice to Cure, and additionally stated that termination of the tenancy was being based upon the tenant's "permitting and/or committing a nuisance on the subject premises."

The grounds for nuisance in the Termination Notice were based on the following. 1) The tenant and family members/guests loitering throughout the hallways and stairwells of the building "at all hours of the day and night." This conduct was alleged to have occurred "in or about the summer of 2007." 2) "Loud and disturbing noises emanating from your apartment and caused by the loitering of you, your family members and your guests and/or visitors in the common areas of the building," and 3) illegal drug activity in violation of Paragraphs 11 and 12 of the lease, and paragraph 6 Rider G. The illegal drug activity was alleged to have been observed "in and around the complex," and it was alleged that such conduct has annoyed and disturbed other tenants and severely interfered with other tenants' rights to comfort, safety and quiet enjoyment of the premises. All of the nuisance allegations were alleged to be "chronic and persistent." Following service of this notice, the landlord served the tenant with the Notice of Petition and Petition on April 1, 2008.

The Appellate term has found a predicate notice insufficient where it alleged merely that the tenant had been permitting or committing a nuisance by maintaining a business in the apartment, without any reference to specific dates and times of the alleged conduct (One Hillside Associate v Almoncio, NYLJ Oct. 12, 1995, p.30 c.1 (App. Terms 9th & 10th); see also Dealmeida v Cabreiro, 142 Misc 2d 867 (City Ct. Yonkers 1989) (notice alleged tenant caused a nuisance during previous six months by "constantly" allowing water from the bathroom sink, tub and faucets to overflow, causing damage to underlying tiles, floor and ceiling. The Court held predicate notice to beinsufficient as it failed to particularize the time or times of the occurrence); see also 297 Lenox Realty Co. v Babel, 2008 NY Misc. LEXIS 3338 (Civ. Ct, Kings Co. 2008)).

The respondent's motion to dismiss the petition must be granted due to the defectiveness of the Notice to Cure and the Notice of Termination. In the Court's opinion, both Notices fail to adequately specify the facts underlying the claims of the tenant's violation of a substantial obligation of the tenancy and nuisance, since no specific dates, times or occurrences are detailed. According to the tenant's Affidavit annexed to her motion to dismiss, the tenant has occupied the subject apartment under renewal leases for approximately 37 years. Thus, it is imperative that specifics be provided as to when the alleged occurrences took place.

With respect to the nuisance allegations, no dates, times or specific instances [*3]are given at all as to when "loud and disturbing noises" were claimed to be caused by the tenant and/or tenant's guests/family members. Similarly, no dates, times or specific instances were given as to the "illegal drug activity" allegations against the tenant, and no arrest was alleged to have been made. The loitering allegations were only specified as having occurred "in or about the summer of 2007 on," with no specific dates or instances given (see Domen Holding Co. v Aranovich, 1 NY3d 117 (2003) (notice deemed sufficient where 3 specific instances of nuisance behavior were identified).

The allegations of the tenant's violation of a substantial obligation of the tenancy based upon unsanitary conditions in the apartment also do not state when these conditions were observed to have occurred and who observed them.

It is well settled law that "a tenant is entitled to a concise statement of the ultimate facts upon which the proceeding is predicated so that the issues, if any there be, are properly raised and can be met" (Gianni v Stuart, 6 AD2d 418, 420 (1st Dept 1958)). In the absence of such requisite facts, a notice to terminate a tenancy is insufficient to serve as a predicate for an eviction proceeding (See One Hillside Associates v Almoncio, supra).

The notice and petition are dismissed for the foregoing reasons.

This constitutes the Decision and Order of this Court.

The Court considered the following papers on this motion: Notice of Motion to Dismiss dated May 23, 2008; Affirmation in Support, Affidavit in support. Affirmation in Opposition dated June 9, 2008, Exh. 1-2. Reply Affirmation dated June 30, 2008.

Dated:July 14, 2008

Mount Vernon, New York

___________________________________

HON. Adam Seiden

Associate City Judge of Mount Vernon

To:

Gutman, Mintz, Baker & [*4]

Sonnenfeldt, P.C.

Attorneys for Petitioner

813 Jericho Turnpike

New Hyde Park, New York 11040

Legal Services of the Hudson Valley

Attorney for Respondent

100 East 1st Street, 8th Floor

Mount Vernon, New York 10550

Att: Ndukwe Agwu, Esq.