1436 Ocean Ave. LLC v Hossain

Civil Court of the City of New York, Kings County

Decided on April 15, 2026

Index No. 303136/25

Michael L. Weisberg, J.

The following e-filed documents, listed by NYSCEF document number 26-28 read on this motion for dismissal.

The petition in this holdover summary eviction proceeding is predicated on a seven-day notice of termination alleging that the rent-stabilized Respondent is causing or permitting a nuisance. It alleges "regular and consistent noise emanating from [the] apartment including the dropping of heavy items on to the floor, thumping on the floor and children running through the apartment." Respondent orally moved to dismiss the petition based on the claim that Petitioner failed to comply with the notice requirements contained in the parties' lease.

As a threshold matter, "it is well settled that oral motions . . . are not prohibited" (Matter of Inzer v West Brighton Fire Dept., Inc., 173 AD3d 1826, 1826 [4th Dept 2019]; see also Osowski v AMEC Constr. Mgt., Inc., 69 AD3d 99, 107 [1st Dept 2009]). Additionally, in a special proceeding "it is the obligation of the court to make a summary determination upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised" (Fourth Hous. Co., Inc. v Bowers, 53 Misc 3d 43 [2d Dept, 2d, 11th, & 13th Jud Dists 2016] [dismissing petition where "papers and pleadings . . . established, as a matter of law, that the proceeding was fatally defective for lack of a conditional limitation"). The court offered the parties the opportunity to submit letter briefs, which they did, thus affording them the opportunity to be heard and creating a proper record for appellate review (see Perrotte v Bloomberg, L.P., 246 AD3d 480 [1st Dept 2026]).

Paragraph 23 of the lease (NYSCEF Doc. 26) requires that the "landlord must give tenant written notice of default stating the type of default." It further provides that "improper conduct by tenant annoying other tenants" is a default under the lease and that the tenant must be given at least ten days to cure the default. Finally, the lease says that if the tenant does not cure within the [*2]time provided, the landlord may serve a "cancellation notice" stating the date that the term of the lease will end, "which may be no less than ten days after the date of the notice."

It is undisputed that Petitioner did not serve any notice of default allowing Respondent to cure as required by the lease.FN1 Although such a notice was not required by Rent Stabilization Code § 2524.3(b), permitting eviction of a rent-stabilized tenant on grounds of nuisance, the lease does require a notice to cure. Petitioner is bound by the terms of the lease. The Rent Stabilization Code "simply establishes the minimum rights to be accorded tenants, and does not preclude a contract that give a tenant greater rights" (Minick v Park, 217 AD2d 489, 490 [1st Dept 1995]). Thus, in Minick, the landlord was required to comply with the lease's provision that the tenant was entitled to six months notice of lease termination before a case based on owner's use, notwithstanding the Rent Stabilization Code's shorter notice requirements (id.).

The decision in 751 Union St., LLC v Charles (56 Misc 3d 141[A], 2017 NY Slip Op 51104[U] [App Term, 2d Dept, 2d, 11th, & 13th Jud Dists 2017]) is directly on point. In that case the landlord brought a holdover summary eviction proceeding to evict the rent-stabilized tenant, alleging nuisance conduct. The lease provisions in that case were identical to those here, in relevant part, requiring the landlord to give written notice and ten days to cure any default involving "improper conduct by tenant annoying other tenants." The court cited Rent Stabilization Code § 2524.3(b) and noted that a landlord is generally not required to serve a notice to cure if the alleged conduct constitutes nuisance. However, citing Minick, the court held that the landlord was required to comply with the more stringent requirements contained in the lease and dismissed so much of the petition as was predicated on the allegation that concerned conduct annoying the tenant's neighbor.

To the extent that Petitioner argues that the lease provisions are wholly inapplicable because the legal authority for the case is Rent Stabilization Code § 2524.3(b), that argument is misplaced for two reasons. First, because it has been rejected by the appellate court in Charles. Second, because Petitioner misconstrues the nature of section 2524.3 (entitled "proceedings for eviction — wrongful acts of tenant"). That regulation does not create grounds on which a landlord may terminate a rent-stabilized lease. Grounds for early termination of the lease are governed by statute and by the terms of the lease itself. That section of the Rent Stabilization Code is more properly construed as limiting the grounds on which a rent-stabilized lease can be terminated early. In other words, while a non-rent-stabilized lease can be terminated early on whatever grounds are permitted by statute and by the lease, rent-stabilized leases can only be terminated early on the grounds permitted by the Rent Stabilization Code. Petitioner's reliance on the language of the Rent Stabilization Code to avoid the obligations contained in the lease, that it chose to offer Respondent, is unavailing.

Accordingly, it is ORDERED that the motion is granted and the petition is dismissed.

This is the court's decision and order.

Dated: April 15, 2026

Michael L. Weisberg, JHC