Opinion
2021-51162
11-19-2021
Tzifil Realty Corp., Appellant, v. Marisol Rodriguez, Respondent.
Felipe E. Orner, for appellant. Legal Services NYC Brooklyn Branch (Brett A. Dolin of counsel), for respondent.
Unpublished Opinion
Felipe E. Orner, for appellant.
Legal Services NYC Brooklyn Branch (Brett A. Dolin of counsel), for respondent.
PRESENT: THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, WAVNY TOUSSAINT, JJ
Appeal from an order of the Civil Court of the City of New York, Kings County (Marc Finkelstein, J.), entered December 3, 2019. The order, insofar as appealed from, granted the branch of tenant's motion seeking to dismiss the petition in a nuisance holdover summary proceeding.
ORDERED that the order, insofar as appealed from, is affirmed, without costs.
Petitioner commenced this holdover proceeding to recover possession of a rent-stabilized apartment on the ground that tenant was "committing or permitting a nuisance" (Rent Stabilization Code [RSC] [9 NYCRR] § 2524.3 [b]). Tenant moved to dismiss the petition upon the ground that the termination notice was fatally defective (see CPLR 3211 [a] [2] and [7]) or, in the alternative, to disqualify petitioner's attorney because he is petitioner's officer and managing agent, and therefore likely to be a witness on significant issues of fact. By order dated December 3, 2019, the Civil Court granted the branch of tenant's motion seeking to dismiss the petition.
It is unclear from the record whether petitioner is a proper party to maintain this proceeding under RPAPL 721; however, that issue is not before this court on this appeal.
Allegations in a termination notice must "adequately apprise[] [tenants] as to the grounds upon which [the notice is] based, allowing them to prepare a legal defense" (Domen Holding Co. v Aranovich, 1 N.Y.3d 117, 125 [2003]). The test for determining the sufficiency of a termination notice is "reasonableness in view of [the] attendant circumstances" (Hughes v Lenox Hill Hosp., 226 A.D.2d 4, 17 [1996]; see Brooklyn Home for Aged People Hous. Dev. Fund Co. v Selby, 32 Misc.3d 130 [A], 2011 NY Slip Op 51314[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; 323 3rd St. LLC v Ortiz, 13 Misc.3d 141 [A], 2006 NY Slip Op 52268[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]). Allegations set forth in a nuisance termination notice, even if true, may properly be dismissed if they are of the type of conduct which would not constitute a nuisance (see Montemuino v Gelber, 33 Misc.3d 133 [A], 2011 NY Slip Op 51995[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
We agree with the Civil Court that the termination notice is defective (see Domen Holding Co., 1 N.Y.3d at 123; Frank v Park Summit Realty Corp., 175 A.D.2d 33, 35 [1991], mod on other grounds 79 N.Y.2d 789 [1991]; Giga Greenpoint Realty, LLC v Mounier, 61 Misc.3d 135 [A], 2018 NY Slip Op 51510[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Montemuino, 2011 NY Slip Op 51995[U]), except to the extent that it alleged that tenant refused to remove "the protruding air conditioner in your bedroom into the fire escape" on four separate occasions, and that such refusal constituted a legal violation. If the foregoing allegations were true, they could constitute a nuisance (see 12 Broadway Realty, LLC v Levites, 44 A.D.3d 372, 372-373 [2007]). However, this is the kind of condition that a tenant is permitted to cure (compare Dov Glick, Inc. v Cuevas, 17 Misc.3d 137 [A], 2007 NY Slip Op 52332[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007], with 311 Lincoln Place Inv., LLC v Woldmarian, 56 Misc.3d 139 [A], 2017 NY Slip Op 51085[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). Since it undisputed that the condition has now been cured (see RPAPL 753 [4]; M. M. & I. Realty Co., L.L.C. v Gargano, 46 Misc.3d 16 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]), and a timely cure pursuant to RPAPL 753 (4) results in a permanent stay of the issuance of the warrant (see Iris Holdings 961 42nd, LLC v Piedrahita, 63 Misc.3d 157 [A], 2019 NY Slip Op 50833[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]), we see no reason to reinstate the petition.
Petitioner's remaining contentions are without merit.
Accordingly, the order, insofar as appealed from, is affirmed.
ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.