This summary holdover proceeding was commenced by GLOREEN REALTY LLC [*2](Petitioner) against SCOTT W. WRIGHT (Respondent), the rent stabilized tenant of record of 321 West 80th Street, Apt. 8, New York, New York 10024 (Subject Premises), based on the allegation that Respondent has constantly allowed cigarette smoke to emanate from the Subject Premises and that is disturbing other tenants and endangering their health.

Petitioner issued a Notice to Cure dated January 23, 2015, asserting that Respondent has violated and breached a substantial obligation of his tenancy, and specific provisions of his lease agreement by "... causing a nuisance in the building by allowing cigarette smoke to constantly emanate from your apartment into common areas of the building which is disturbing other tenants in the building." The notice states Respondent is violating Section 2524.3 of the Rent Stabilization Code by permitting a nuisance. Two specific dates of tenant complaints are alleged one in April 2013 and another in January 2015. The notice gave Respondent 10 days to cure "... by no longer making excessive noise" in the Subject Premises.

Petitioner issued a Notice of Termination dated February 25, 2015, which states Respondent's tenancy is being terminated based on the fact that Respondent failed to cure the lease violations. The notice incorporates the allegations of the notice to cure but does not reference any cause of action for nuisance.

The petition is dated March 16, 2015, and the proceeding was initially returnable April 8, 2015. The proceeding was adjourned to May 12, 2015, when it was dismissed based on Petitioner's failure to appear.

On May 28, 2015, Petitioner moved to vacate its default and restore the proceeding to the calendar. The motion was granted by the court (Saxe, J) pursuant to an order which noted that Respondent's mother had appeared and asserted Respondent has an accident and had suffered a traumatic brain injury. The court indicated it would make an APS referral and the proceeding was adjourned to July 6, 2015.

By letter dated August 10, 2015, APS advised the court that Respondent was eligible for protective services.

On October 14, 2015, APS moved for a GAL, the motion was granted and the proceeding was adjourned to November 17, 2015 for the GAL to appear. On October 29, 2015, the court (Black, J) appointed Arlene Gottlieb as GAL for Respondent. The GAL obtained counsel who appeared on January 5, 2016.

Counsel filed an answer dated February 8, 2016, asserting defenses including failure to state a cause of action for nuisance, failure to state a cause of action for violating a substantial obligation of tenancy and asserting that Respondent had cured any alleged violation.

On March 8, 2016, Respondent moved to dismiss the proceeding based on failure to state a cause of action. On May 18, 2016, the court heard argument and reserved decision.

Rent Stabilization Code §2524.2(b) provides:

Every notice to a tenant to vacate or surrender possession of a housing accommodation 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, the facts necessary to establish the existence of such ground, and the date when the tenant is required to surrender possession.

Rent Stabilization Code §2524.3(a) provides for a cause of action based violation of a substantial obligation of tenancy and requires service of a notice to cure. Rent Stabilization Code §2524.3(b) provides for a cause of action based on nuisance and does not require service of [*3]a notice to cure.

It is difficult to discern from Petitioner's notice which cause of action is asserted. The Notice to Cure refers to breach of substantial obligation of tenancy but specifically references the language in §2524.3(b). The notice references breach of substantial obligation but does not state it is being issued pursuant to §2524.3(a).

The notice does state that the smoke is "constantly" emanating but only lists two specific instances which are approximately two years apart.

Then in stating what is require to cure the notice only states that Respondent should no longer make excessive noise, which allegation is not referenced anywhere else in the notice. The required cure makes no reference to the alleged smoke.

This confusion is not alleviated by the notice of termination, which only references a failure to cure lease violations and makes no reference to any termination based on nuisance.

In evaluating the facial sufficiency of a predicate notice in a summary eviction proceeding, "the appropriate test is one of reasonableness in view of the attendant circumstances" (Hughes v. Lenox Hill Hospital, 226 AD2d 4, 18, 651 N.Y.S.2d 418, lv. dismissed 90 NY2d 829, 660 N.Y.S.2d 552, 683 N.E.2d 17).

Petitioner's notice herein is muddled and does not clearly advise Respondent of the basis of the proceeding sufficient to allow Respondent to understand the claim and prepare a defense, and does not identify with sufficient particularity the basis of the proceeding. Is Petitioner proceeding on breach of lease or nuisance? Is the issue smoke or noise?

Petitioner asserts that the cause of action is for nuisance, but does not explain why the termination is only based on an alleged failure to cure the lease violations.

Even affording Petitioner every favorable inference the pleadings are too confused and jumbled to be sufficient to sustain a cause of action and are not reasonable under the circumstances. Based on the foregoing, the proceeding is dismissed without prejudice.

This constitutes the decision and order of the court.