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, [*2]and so dismissed landlord's petition. Accordingly, the Civil Court properly struck the virtually identical allegations set forth in the instant notice of termination based upon res judicata.

The Civil Court also properly found that several other stricken allegations, as stated, did not allege a nuisance (see Rent Stabilization Code [9 NYCRR] § 2524.3). Not every annoyance will rise to the level of a nuisance (Domen Holding Co. v Aranovich, 1 NY3d 117, 124 [2003]). These allegations (such as failure to sign a renewal lease) did not describe behavior that, even if proven, would have constituted a condition that would have risen to the level of a nuisance.

The court also dismissed certain allegations because landlord failed to give tenant sufficient details, such as the alleged times and dates of these occurrences, to allow tenant to prepare a defense. Although exact dates are not always required to state a nuisance (see Pinehurst Constr. Corp. v Schlesinger, 38 AD3d 474 [2007]), here the Civil Court properly found that, in light of the circumstances, the allegations did not adequately allow tenant to prepare a defense and did not allege behavior that rose to the level of a nuisance.

As to the March 4, 2010 order, to the extent that landlord's motion sought to strike scandalous or prejudicial material from the answer, or sought, in essence, a more definite statement as to tenant's counterclaim of harassment, the appeal is dismissed, as there is no appeal as of right from the portion of the order denying that branch of the motion (CCA 1702 [b] [1], [2]), and we decline to grant leave to appeal therefrom.

To the extent that landlord's motion sought to dismiss tenant's affirmative defenses pursuant to CPLR 3211 (b), it was properly denied as landlord failed to demonstrate that the defenses were without merit as a matter of law (see e.g. Galasso, Langione & Botter, LLP v Liotti, 81 AD3d 880 [2011]; Family-Friendly Media, Inc. v Recorder Tel. Network, 74 AD3d 738 [2010]; Vita v New York Waste Servs., LLC, 34 AD3d 559 [2006]).

Accordingly, the order dated November 13, 2009, insofar as appealed from, and the order dated March 4, 2010, insofar as reviewed, are affirmed.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: October 26, 2011