Peru Leasing L.P. v Sanchez

Civil Court of the City of New York, Queens County

Decided on April 27, 2026

Index No. LT-300423-25/QU

Jordan M. Dressler, J.

Recitation, as required by CPLR § 2219(A), of the papers considered in the review of this (these) motion(s):

Papers Numbered [NYSCEF Doc. No.]

RESPONDENT'S NOTICE OF MOTION AND SUPPORTING AFFIRMATION 1[7-8]

PETITIONER'S AFFIRMATION IN OPPOSITION 2[10]

RESPONDENT'S AFFIRMATION IN REPLY AND EXHIBITS 3[12]

Upon the foregoing cited papers, the Decision and Order on this (these) Motion(s) is as follows:

In this holdover eviction proceeding, Petitioner Peru Leasing L.P. seeks to recover possession of this rent-stabilized apartment from Respondents based on alleged conduct by Respondents which Petitioner alleges to be a nuisance. The conduct, as alleged in a Notice of Termination, was an encounter between an unidentified woman with a small dog and an unidentified man with a larger pitbull in which the pitbull lunges at the small dog, after which their respective human handlers argued. According to the notice, this incident was immediately followed by Respondent Alan Josue Burgos Moncada swiping his key fob to enter the building.

Although the predicate notice states that Respondents are "in default of a material obligation of the Lease," the notice specifically, and solely, cites Rent Stabilization Code § 2524.3(b), which authorizes commencement of an eviction proceeding against a rent-stabilized [*2]tenant in cases of "nuisance...[or if] the tenant engages in a persistent and continuing course of conduct evidencing an unwarrantable, unreasonable or unlawful use of the property to the annoyance, inconvenience, discomfort or damage of others, the primary purpose of which is intended to harass the owner or other tenants or occupants of the same or an adjacent building or structure by interfering substantially with their comfort or safety." RSC § 2524.3(b). Th predicate notice makes no mention of RSC § 2524.3(a) which concerns evictions for substantial violations of rent-stabilized tenancies.

Respondent now moves to dismiss the petition pursuant to CPLR §§ 3211(a)(7) on the grounds that the allegations set forth in the notice of termination do not constitute a nuisance. In the alternative, Respondent moves for leave to file an answer. Petitioner opposes the motion to dismiss.

Under CPLR § 3211(a)(7), in deciding a motion to dismiss for failure to state a cause of action, the Court is not called upon to determine the truth of the allegations. See Campaign for Fiscal Equity v State of New York, 86 NY2d 307, 318 (1995); 219 Broadway Corp. v Alexander's, Inc., 46 NY2d 506, 509 (1979). Instead, the Court is required to afford the pleadings a liberal construction, take the allegations of the complaint as true and provide plaintiff the benefit of every possible inference, and whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss. EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 (2005). The Court's role is limited to determining whether the pleading states a cause of action, not whether there is evidentiary support to establish a meritorious cause of action. See Guggenheimer v Ginzburg, 43 NY2d 268, 275 (1977).

The test for determining the sufficiency of a termination notice is whether it is "reasonable . . . in view of the attendant circumstances." Brooklyn Home for Aged People Housing Development Fund Co. v Selby, 32 Misc 3d 130(A) (App Term 2d 11th & 13th Jud Dists 2011). A notice to terminate a tenancy must contain specific and unambiguous language and advise the tenant of the precise conduct complained of and how it violates the tenancy. Chinatown Apartments, Inc. v Chu Cho Lam, 51 NY2d 786 (1980). "In evaluating the legal sufficiency of the nuisance claim, only the allegations contained in the notice of termination should be considered; any other alleged claims or violations not specified in the notice must be disregarded." Domen Holding Co v Aranovich, 302 AD2d 132 (1st Dept 2003), rev'd on other grounds, 1 NY3d 117 (2003). If the termination notice does not support allegations necessary to prove nuisance, the notice is fatal and cannot be amended, requiring dismissal of the proceeding. Chinatown Apartments, Inc. v. Chu Cho Lam, supra. In nuisance proceedings, predicate notices must provide sufficiently specific factual allegations so that the tenant may adequately prepare a legal defense. Hughes v Lenox Hill Hosp., 226 AD2d 4 (1st Dept 1996). A notice to terminate in a nuisance proceeding requires allegations of repeated objectionable behavior, and courts have generally declined to make a finding of nuisance based on a single incident. See Kaufman v Hammer, 49 Misc 2d 773 (Dist Ct Nassau Cty 1966). When considering the sufficiency of predicate notice, the court can dismiss allegations that "even if true are of the type of conduct which would not constitute a nuisance" Tzifil Realty Corp. v. Rodriguez, 155 NYS3d 525, *2 (App Term 2nd Dept 2nd 11th & 13th Dists 2021).

Here, there is nothing alleged in Petitioner's notice of termination other than a single incident in which one dog lunged at another after which their caretakers argued. There is no allegation contained in the predicate notice that this condition occurred again before or since the cited incident, nor that any of the Respondents ever engaged in any other offensive or objectionable behavior. There is no allegation of intentional violence caused by any of the Respondents that could support a finding of nuisance based on a solitary incident. See 160 W. 118th St. v Gray, 801 NYS2d 238 (Civ Ct NY Cty 2004); Cambridge Leasing Prop. LLC v Cachimbo, 81 Misc 3d 1223(A) (Civ Ct Queens Cty 2023).

As Petitioner's notice of termination is insufficient to establish a cause of action for holdover eviction based on nuisance and this notice may not be amended, Respondent's motion to dismiss is hereby granted.

Based on the foregoing, it is

ORDERED that the proceeding is dismissed. This constitutes the decision and order of the Court.

Dated: April 27, 2026

Jamaica, NY

HON. JORDAN M. DRESSLER

Judge, Housing Court