Opinion
Index No. 310364-22
07-24-2023
CUCS West 127th Street, LLC., Petitioner, v. Ebstessam Eshaq, Respondent.
Kellner Herlihy Getty & Friedman, LLP (Jeanne-Marie Williams, Esq.), for the petitioner Northern Manhattan Improvement Corporation (Kimberly Jane Warner, Esq.), for the respondents
Kellner Herlihy Getty & Friedman, LLP (Jeanne-Marie Williams, Esq.), for the petitioner
Northern Manhattan Improvement Corporation (Kimberly Jane Warner, Esq.), for the respondents
HON. KAREN MAY BACDAYAN, JUDGE.
Recitation, as required by CPLR 2219 (a) of the papers considered in review of this motion by NYSCEF Doc Nos. 1-27.
PROCEDURAL HISTORY AND BACKGROUND
This is a holdover proceeding commenced in August 2022 by petitioner, a supportive housing provider, against Ebstessam Eshaq ("respondent"). Respondent is a Section 8 recipient who is "eligible for NYC 15/15 assistance." (NYSCEF Doc No. 1, petition ¶ 8.) , On March 25, 2022, petitioner served a notice to cure, alleging respondent breached substantial obligations of her lease by keeping the subject premises "in an excessively cluttered state since soon after moving into the unit." (NYSCEF Doc No. 1, petition at 7.) The notice to cure alleges the Department of Housing Preservation and Development ("HPD") issued a Class B violation for a "nuisance consisting of excessive storage of material boxes, clothes, household items obstructing egress in the entire apartment...." (Id.) The notice to cure also alleges that "[b]ased on staff observations, every room except the kitchen is packed with belongings, leaving little or no room to walk through, and you also collect and hold recyclables for an excessive period of time, adding to the clutter and unsanitary conditions in the unit." (NYSCEF Doc No. 1 at 8.) The notice further alleges that respondent had not cooperated with Adult Protective Services ("APS") in their efforts to assist her. Respondent was given until April 20, 2022 to cure the alleged violations or be served with a notice of termination. (Id.) The notice to cure did not state what specific actions respondent must take to cure the alleged violations.
NYC 15/15 "assists eligible families or individuals that are homeless or at risk of homelessness by providing an affordable apartment and supportive services to help them move toward the goal of long-term stability. NYC 15/15 assistance is provided through long-term contracts with owners of private apartments, under which HPD issues monthly rental assistance payments for apartments occupied by eligible households. Assisted households are responsible for paying approximately 30% of their adjusted incomes towards their rent. HRA and DOHMH provide the social service provider a contract to offer onsite social services to NYC 15/15 participant households." NYC 15/15 Welcome Packet, https://www.nyc.gov/assets/hpd/downloads/pdfs/services/nyc-15-15-welcome-packet.pdf (last accessed July 20, 2023.)
Petitioner is named as one of the providers of the New York City 15/15 Supportive Housing Initiative ("NYC 15/15") on the website for the New York City Human Resources Administration. New York City 15/15 Supportive Housing Initiative, https://www.nyc.gov/site/hra/help/15-15-initiative.page (last accessed July 20, 2023.)
The Adult Protective Services Program (APS) provides services for physically and/or mentally impaired adults.
Petitioner subsequently served a notice of termination on June 15, 2022, which alleges respondent continued to violate substantial obligations of her lease, based on the fact that a May 6, 2022 HPD inspection revealed the subject premises remained cluttered and that respondent continued to collect recyclables "for an excessive period of time, adding to the clutter and unsanitary conditions in the apartment." (Id. at 4-5.) The notice of termination also alleged respondent unreasonably refused access to her apartment in violation of Section 2524.3 [e] of the Rent Stabilization Code, refused to permit petitioner's staff into the subject premises on May 6, 2022, despite having received more than 24 hours' notice of the request, and refused an offer from APS to conduct a deep cleaning of her apartment free of charge. (Id. at 6.) The notice directed respondent to vacate by June 30, 2022 or face a summary proceeding.
On the record at oral argument, petitioner withdrew any cause of action related to respondent's alleged refusal to provide access to the apartment. FTR at 3:41 p.m., July 13, 2023. The court notes that petitioner's affidavit supports no other cause of action except for lack of access. NYSCEF Doc No. 23, Brandt affidavit.
The petition incorporates the predicate notices by reference in the petition. The petition was first scheduled to be heard on September 6, 2022, on which date the court made an APS referral. Respondent's counsel filed a notice of appearance on January 11, 2023, and subsequently filed a motion in March 2023, seeking the appointment of a guardian ad litem ("GAL") for respondent pursuant to CPLR 1202. (NYSCEF Doc No. 5, notice of appearance; NYSCEF Doc No. 11, signed order to show cause [motion sequence 1].) Respondent's counsel filed an answer on March 26, 2023, prior to the return date of the order to show cause; the answer includes inter alia a defense that the notice to cure is "unclear, ambiguous, and equivocal." (NYSCEF Doc No. 12, answer ¶ 19.) A GAL was appointed on June 15, 2023. (NYSCEF Doc 24, GAL order.)
Arguably, petitioner, who had knowledge of respondent's issues that was unavailable to anyone else at this stage of the proceeding, should have requested a guardian ad litem.
Now before the court is respondent's motion to dismiss the proceeding due to alleged infirmities in the predicate notices. (NYSCEF Doc No. 15, notice of motion [sequence 2].) Petitioner filed opposition papers on June 7, 2023, and respondent filed reply on July 7, 2023. (NYSCEF Doc No. 22, petitioner's attorney's affirmation in opposition; NYSCEF Doc No. 23, Brandt affidavit; NYSCEF Doc No. 24, respondent's attorney's reply.) On July 13, 2023, the parties appeared for oral argument and the court reserved decision.
ARGUMENTS
Respondent contends that a predicate notice to cure a breach of a substantial obligation must inform a tenant of what actions the tenant must take in order to cure the alleged breach, citing to several Housing Court decisions in support of this position. (NYSCEF Doc No. 16, respondent's attorney's affirmation ¶¶ 16-17.) Respondent alleges the notice to cure left respondent to speculate as to whether she needed to remove just her belongings from the areas of ingress and egress, or if she needed to remove "every item deemed out of place... to avoid eviction." (Id. ¶¶ 20-21.) Respondent argues that the ambiguous nature of the notice to cure must lead to dismissal of the proceeding, as respondent was deprived of a meaningful opportunity to cure and therefore avoid an eviction. (Id. ¶ 26.) Additionally, respondent contends that the notice of termination does not include sufficient facts to support petitioner's claim that respondent failed to cure the alleged breach of her lease, raised allegations that were not contained in the notice to cure, and failed to set forth a proper claim of nuisance as it does not state how the alleged conduct affected respondent's neighbors. (Id. ¶¶ 28-30.)
In opposition, petitioner contends the predicate notices meet the test of sufficiency under Hughes v Lenox Hill Hosp., 226 A.D.2d 4 (1st Dept 1996), and that a notice to cure need not "expressly inform a tenant of the conduct the tenant must undertake to cure the breach." (NYSCEF Doc No. 22, petitioner's attorney's affirmation in opposition ¶¶ 2, 18.) Rather, petitioner advances that it complied with the requirements of a notice to cure: to be definitive and unequivocal; to allow the tenant to understand the specific claims so that the tenant can prepare a defense; to specify the conduct the tenant needs to correct; and to inform the tenant of specific lease provisions that prohibit the alleged conduct. (Id. ¶ 19.) Petitioner also argues it was proper to allege nuisance in the notice of termination despite giving respondent an opportunity to cure, because a cause of action for nuisance is incorporated into one of the lease provisions cited in the notice to cure. (Id. ¶ 5.) Petitioner further contends that petitioner "likely could confirm the continuation of the extreme clutter" based on HPD's inspection of the apartment on May 6, 2022, and respondent's refusal to allow APS to conduct a deep cleaning of the subject premises. (Id. ¶¶ 10-11, 15.)
Placement of a violation by HPD is prima facie evidence that the violation exists, but HPD is not qualified to determine whether the violation is a continuing nuisance as a matter of law.
In reply, respondent argues that while a tenant may sometimes be able to reasonably infer that a "single concrete action" is sufficient to cure an alleged lease violation, the "nuanced" nature of respondent's alleged behavior in the notice to cure, required petitioner to plead more specifically what exactly respondent needed to do to cure said violations. Moreover, given the fact that respondent resides in supportive housing and has a GAL in this proceeding, it is not reasonable to expect her to understand the "vague and confusing" notice to cure and know how to cure the alleged violations without explicit directions. (NYSCEF Doc No. 25, respondent's attorney's affirmation in reply ¶¶ 9-11.) Respondent argues that "[t]o the extent that the Notice of Termination relies on a defective notice to cure, it is also defective." (Id. ¶ 27.)
DISCUSSION
Petitioner's Claim for Breach of Substantial Obligation:
Predicate notices to recover possession of rent-stabilized apartments must "state the ground" for termination of the tenancy, provide "the facts necessary to establish the existence of such ground, and the date when the tenant is required to surrender possession." (Rent Stabilization Code ("RSC") [9 NYCRR] § 2524.2.) A landlord may serve a termination notice based on a tenant's violation of a substantial obligation of their tenancy after providing the tenant with a written ten (10) day notice to cure the alleged violation. RSC § 2524.3 (a). The purpose for requiring predicate notices to state the "facts necessary to establish the existence" of the grounds is to "ensure[] that a tenant will be informed of the factual and legal claims that he or she will have to meet and enables the tenant to interpose whatever defenses are available." (Bellstell 140 East 56 th Street, L.L.C. v Layton, 180 Misc.2d 25, 27 [Civ Ct, New York County 1999], citing MSG Pomp Corp. v Jane Doe, 185 A.D.2d 798, 800 [1st Dept. 1992].)
Petitioner argues that "the appropriate standard for assessment of the adequacy of notice is one of "reasonableness in view of all attendant circumstances." (Hughes v Lenox Hill Hosp., 226 A.D.2d 4, 17 [1st Dept 1996].) However, Hughes is too often, and too conveniently, cited for a much broader proposition that that for which it actually stands.
In 289 & 305 Assocs. LP v Blanco, No. 70128/2015, 2016 WL 75425, at *2 (Civ Ct, New York County 2016) the court explicated that" Hughes was a declaratory judgment action commenced by the son of the deceased tenant of record, in which the son sought to succeed to his mother's tenancy. He commenced the action subsequent to the landlord's notice of nonrenewal, in which the landlord alleged that the tenant of record was not residing in the apartment as her primary residence because she had died. In light of that allegation it was obviously not necessary to allege any other facts in support of the claim that the tenant of record was not using the apartment as her primary residence. Yet, when Hughes is cited for the 'reasonable under the attendant circumstances' standard it is regularly done without any reference to the facts of the case. When that happens the very particular and singular fact that the landlord's claim was predicated on the tenant's death is lost."
Here, respondent cites to persuasive authority in support of the proposition that petitioner was obligated to state in the notice to cure how respondent was to cure the alleged breaches of her lease. (Shore Lane Arms Owners Corp. v Mazza, 26 Misc.3d 1220 (A), 2010 NY Slip Op 50190 (U) (Civ Ct, Kings County 2010), citing Westhampton Cabins & Cabanas Owners Corp. v Westhampton Bath & Tennis Club Owners Corp., 62 A.D.3d 987 (2d Dept 2009); 200 W. 58th St. LLC v Little Egypt Corp., 7 Misc.3d 1017 (A), 2005 NY Slip Op 50640 (U) (Civ Ct, New York County 2005).
While there appears to be no binding authority in the First Department for respondent's proposition, the court agrees with respondent that under the "attendant circumstances" of this proceeding, it was not reasonable for petitioner - a provider of supportive housing tasked with providing services to some of the most vulnerable tenants in New York City, who had actual knowledge of respondent's psychological issues and of APS's attempts to assist respondent - to serve a notice to cure devoid of any explanation to respondent as to what actions she needed to take to avoid eviction.
In recent years, courts have become increasingly amenable to finding that a handicapped tenant is entitled to protection under the Fair Housing Act in the form of a reasonable accommodation if necessary to maintain their tenancy and an equal opportunity to use and enjoy a dwelling. (See generally 42 USC § 3604, Fair Housing Act ["FHA"].) A reasonable accommodation can include a change in practice or in procedure. No specific diagnosis is required to entitle a tenant to protection under the FHA, and in fact a handicap may even be deduced from the "observations of a lay person." (See e.g. Prospect Union Assocs. v DeJesus, 167 A.D.3d 540, 543 [1st Dept 2018].) In these decisions, a reasonable accommodation has been granted in the form of a stay on the execution of a warrant of eviction. However, an accommodation based on the recognition of a disability (hoarding) which is directly related to the complained of behavior, and of which a supportive housing landlord is aware in advance of an eviction proceeding, is a rational extension of this trend. To this end, more specific pleading is a modification to practice and/or procedure that could assist a hoarder to maintain and enjoy their housing.
Hoarding disorder is a DSM-5 (Diagnostic and Statistical Manual of Mental Disorders 5th ed.) diagnosis assigned to individuals who cannot bear to depart from any of their belongings, which results in excessive clutter to an extent that impairs functioning and may create health and safety risks and stress for the individual. A recent study reported in Psychiatric Services, Volume 71, April 1, 2020 pp 405-408, Pilot Study Evaluating Critical Time Intervention for Individuals With Hoarding Disorder at Risk for Eviction, spearheaded by the Department of Psychiatry and Behavioral Sciences at Stanford University, found that critical time intervention ("CTI"), "an evidence based model of case management shown to be effective for vulnerable populations, was adapted for individuals with severe symptoms of hoarding disorder at risk for eviction." The researchers reported the pilot study to be "the first study to address the gap in treatment resources for individuals with hoarding disorder by providing a low-cost, flexible, and time-limited community-based program to improve quality of life and prevent eviction." The researcher conceded that while there was a statistically significant decrease in the level of clutter" through early intervention, "the level of clutter was still severe enough to put clients at continued risk for eviction." Nevertheless,"[t]he observed decreases in hoarding severity were comparable with more intensive and more costly treatments." The researchers reported that "the leaders of CTI-HD met with the... Supportive Housing Network of New York and informed officials about the CTI-HD program, system barriers they had identified, and lessons learned."
Petitioner is a member of the Supportive Housing Network of New York. See The Supportive Housing of New York, membership page, available at https://shnny.org/about/network-members/new-york-city/, (last accessed July 21, 2023).
Because hoarders "experience distress at the thought of getting rid of... items," specific instruction regarding how the respondent could cure the alleged breach of her obligations falls within the rubric of early intervention. Here, it was not clear whether respondent needed to remove everything, or whether removal of the recyclables and some boxes would prevent her eviction. Whether or not the advocacy of an attorney, the assistance of a guardian ad litem, and the involvement of APS will ultimately save respondent's home in this particular case is undecided. However, requiring their attorneys to plead with more specificity in notices to cure served upon supportive housing clients who suffer from a hoarding disability would be an inexpensive accommodation in the form of modified procedures prior to commencing an eviction proceeding, and may lead to more expeditious compliance with a notice to cure.
Mayo Clinic homepage, Diseases and Conditions, Hoarding Disorder, available at https://www.mayoclinic.org/diseases-conditions/hoarding-disorder/symptoms-causes/syc-20356056, last visited July 21, 2023.
Therefore, respondent's motion to dismiss petitioner's cause of action for substantial breach of respondent's tenancy obligations is granted.
Petitioner's Claim for Nuisance
Courts have defined a nuisance as a "continuous invasion of rights a pattern of continuity or recurrence of objectionable conduct." (Frank v Park Summit Realty Corp, 175 A.D.2d 33, 34 [1st Dept 1991]; Domen Holding Co. v Aranovich, 1 N.Y.3d 117 [2003].) To establish whether certain behavior is so egregious as to rise to the level of nuisance, the court must weigh the quantitative and qualitative aspects under a specific set of facts to determine whether a nuisance occurred. (Metropolitan Life Ins. Co. v. Moldoff, 63 N.Y.S.2d 385, 386 [1st Dept 1946].)
The tenant's conduct must, inter alia, affect other residents' health and safety for the alleged conduct to amount to nuisance behavior. (RSC § 2524.3 [b]; Roxborough Apts. Corp. v Kalish, 22 Misc.3d 130 [A] [1st Dept 2009] [landlord failed to state actionable claim for nuisance, where landlord did not claim that tenant's alleged conduct in any way affected other building residents]; Sumet I Assocs., LP v Irizarry, 103 A.D.3d 653, 654 [2d Dept 2013] [after trial finding that landlord failed to demonstrate that the criminal activity of vandalizing walls in common area threatened the health, safety, or right to peaceful enjoyment of the premises by other residents].)
Here, respondent correctly points out that neither of the predicate notices contain any allegations as to how respondent's alleged conduct negatively impacted the health and safety of other tenants in the subject building. Moreover, the alleged conduct does not lead to a reasonable inference that the alleged cluttered condition of the apartment, consisting of recyclables, boxes, and household items, in areas of the apartment other than the kitchen, jeopardizes the safety of the other tenants. This court has found notices of termination in hoarding cases when there are allegations of, e.g. vermin, insects, foul odors, and fire threats, which common sense dictates can affect the entire building and/or spread to other residents' apartments, to be sufficient. However, here there are no such allegations, and the kitchen, usually the greatest fire threat, is specifically exempted from the complaint. (NYSCEF Doc No. 1, petition at 8.)
See Danmoor Realty Corp. v Concencion, Civ Ct, New York County, Index No. 301496/2021 [Bacdayan, J., Sept. 28, 2022]; 12 Broadway Realty, LLC v. Levites, 44 A.D.3d 372, 373 (1st Dept 2007) [finding predicate notice sufficient in part because "[a]lthough respondent argues that the items about which petitioner complains affected only her apartment (as opposed to other tenants), the mice in her apartment could spread to other parts of the building"]; Tezca v Chery, 2022 NY Slip Op 30530 (U) (2022 NY Slip Op 30530 (U) (Civ Ct, Kings County 2022) ("[c]ommon sense and the lessons of human experience should not be strangers to the decision-making process (internal citations omitted)"]; Courtney House, LLC v Goetz, 51 Misc.3d 146 (A) (App Term, 1st Dept 2016) (finding sufficient a notice of termination that stated "the apartment is in an extremely cluttered and unhygienic condition, with empty food cans, refuse and other unidentifiable items completely covering most of the flat surfaces and floors... and piled several feet high throughout the apartment... [and] that a moth infestation spread from tenant's apartment to other apartments (internal quotations omitted)"); 1123 Realty LLC v Treanor, 62 Misc.3d 326, 336 [Civ Ct, Kings County 2018), affd 74 Misc.3d 131 (A) (App Term, 2d Dept 2022]) (finding sufficient a termination notice alleging that the rent stabilized tenant permitted unsafe and unsanitary conditions based on the accumulation of specific items, to wit, newspapers, clothing, bikes, furnishings, boxes, refuse, papers, garbage, and miscellaneous debris that have obstructed passage through the apartment and the windows, attracts vermin, and constitutes a fire hazard (internal quotations omitted).")
Therefore, respondent's motion to dismiss petitioner's cause of action for nuisance is granted.
CONCLUSION
Accordingly, it is hereby
ORDERED that respondent's motion to dismiss is GRANTED, and the proceeding is dismissed without prejudice.
This constitutes the decision and order of this court.