This is a holdover summary eviction proceeding in which Petitioner claims Respondent has engaged in nuisance conduct in violation of the Rent Stabilization Code. Petitioner alleges three occasions during which "excessive noise was emanating" from Respondent's apartment and which resulted in complaints by "other tenant(s) in the building." These occasions are specified in the predicate notice of termination as July 11, 2015, between the hours of 9:00 PM and 11:59 PM; July 25, 2015, between the hours of 2:00 PM and 3:00 PM; and July 26, 2015, between the hours of 1:00 PM and 2:00 PM.

Respondent answered the petition, denying the allegations and pleading various defenses. She has now moved for summary judgment on several of those defenses, including her defense that the petition fails to state a cause of action for nuisance as a matter of law. Petitioner has cross-moved for dismissal of Respondent's defenses. The motions are consolidated herein for disposition.

The leading case concerning nuisance in a landlord-tenant context is Domen Holding Co. v Aranovich (1 NY3d 117 [2003]), wherein the Court of Appeals defined nuisance as follows:

To constitute a nuisance the use of property must interfere with a person's interest in the use and enjoyment of land. The term "use and enjoyment" encompasses the pleasure and comfort derived from the occupancy of land and the freedom from annoyance. However, not every annoyance will constitute a nuisance. Nuisance imports a continuous invasion of rights—"a pattern of continuity or recurrence of objectionable conduct." Domen Holding Co., 1 NY3d at 123-124 (internal citations omitted).

Domen was predicated on alleged incidents of verbal altercations and physical threats engaged in by the tenant's occupant directed at other tenants in the building. Three incidents were specifically detailed, while an unspecified number of other, undetailed incidents were also [*2]alleged. The altercations were alleged to have taken place over a period of five years, with the third (most recent) incident occurring more than three years after the second incident.

The Appellate Division had affirmed dismissal of the complaint, holding that the landlord's allegations of three incidents in five years did not, as a matter of law, constitute a nuisance warranting the tenant's eviction (Domen Holding Co. v Aranovich, 302 AD2d 132, 136 [1st Dept 2003], revd 1 NY3d 117 [2003]). But the Court of Appeals reversed, noting that even though the alleged incidents occurred over five years "their severity and circumstances under which they allegedly took place tend to support plaintiff's contention that [the occupant] displays intolerance and aggression toward those living and working within the building. The allegations further may suggest that [the occupant] is easily incensed and prone to violent outbursts from time to time and, therefore, his continued residency in the building places the comfort and health of other in the building at constant a constant risk" (Domen Holding Co., 1 NY3d at 124-125).

"A finding of nuisance has qualitative as well as quantitative aspects" (Domen Holding Co., 302 AD2d at 134-135, revd on other grounds 1 NY3d 117 [2003]). Whether conduct constitutes nuisance also depends on the context in which place the conduct is taking place. "Person's living in organized communities must suffer some damage, annoyance and inconvenience from each other. If one lives in the city he must expect to suffer the dirt, smoke, noisome odors and confusion incident to city life" (Nussbaum v Lacopo, 27 NY2d 311, 315 [1970], quoting Campbell v Seaman, 63 NY 568, 577 [1876]).

In contrast to the conduct at issue in Domen, which the Court characterized as "aggression" and "violent outbursts," the objectionable conduct here is excessive noise. Moreover, it is significant that two of the three incidents of noise alleged by Petitioner occurred during the daytime hours and lasted for a duration of no more than an hour. The court is well acquainted with apartment living in New York City and is not unmindful of how vexatious and even rage-inducing it can be to endure the inconsideration of a neighbor who engages in the type of conduct alleged here. Yet, "the peace and quiet of a rural estate or the sylvan silence of a mountain lodge cannot be expected in a multiple dwelling. Mutual forbearance and the golden rule should, but unfortunately in many cases do not, act as a yardstick for the conduct of tenants in apartment houses" (Matter of Twin Elm Mgt. Corp. v Banks, 181 Misc 96, 97 [Mun Ct, Queens County 1943] [court held "continuous" piano playing was not a nuisance]).

While conduct of the type alleged by Petitioner may have continued since issuance of the termination notice, the court is constrained here to evaluate the sufficiency of the pleadings without reference to allegations of conduct that may have occurred subsequent to date of the notice of termination. Accepting every allegation of the petition as true and giving Petitioner the benefit of all favorable inferences, the three incidents of noise alleged by Petitioner in the notice of termination do not rise to the level of nuisance as a matter of law. Petitioner has therefore failed to state a cause of action for nuisance. Respondent is awarded summary judgment. The petition is dismissed. The court therefore not need reach the balance of Respondent's motion. Petitioner's cross-motion is denied as moot.