Opinion
No. 25657/2016.
01-09-2017
1540 WALLCO, INC., Petitioner–Landlord, v. David Collins SMITH f/k/a David Collins Odle, Respondent–Tenant, "John Doe" and "Jane Doe", Respondents–Undertenants.
Novick, Edelstein, Lubell, Reisman, Wasserman & Leventhal, P.C., Yonkers, attorneys for petitioner. The Price Law Firm LLC, New York, attorney for respondent.
Novick, Edelstein, Lubell, Reisman, Wasserman & Leventhal, P.C., Yonkers, attorneys for petitioner.
The Price Law Firm LLC, New York, attorney for respondent.
OPINION OF THE COURT
DIANE E. LUTWAK, J.
Recitation, as required by CPLR Rule 2219(a), of the papers considered in the review of Respondent David Collins Smith's motion for summary judgment and Petitioner 1540 Wallco, Inc.'s cross-motion to strike Respondent's affirmative defenses and for summary judgment:
| Papers Numbered | |
|---|---|
| Respondent's Notice of Motion, Affirmation & Affidavit | 1 |
| Petitioner's Notice of Cross Motion/Opposition to Motion, Affirmations & Exhibits A–Y | 2 |
| Petitioner's Memorandum of Law | 3 |
| Respondent's Affirmation in Opposition to Cross–Motion and in Reply, Affidavit & Exhibit A | 4 |
| Petitioner's Affirmation in Reply & Exhibit A | 5 |
Upon the foregoing papers, and for the reasons set forth below, Respondent's Motion is denied and Petitioner's Cross–Motion is granted to the extent of striking Respondent's third affirmative defense.
BACKGROUND & PROCEDURAL HISTORY
This is a holdover eviction proceeding based upon alleged nuisance brought by 1540 Wallco, Inc. against David Collins Smith, the Rent Stabilized tenant of Apartment 2A at 1540 Walton Avenue, Bronx, New York. Petitioner's "Seven (7) Day Notice of Termination" alleges that Respondent "intentionally, willfully and/or purposefully damaged property, and/or made alterations to your apartment without permission of the landlord and in contravention to Order(s) of the Civil Court of the City of New York, County of Bronx, Housing Part." The termination notice lists the following actions by Respondent:
Petitioner also names a "Jane Doe" and a "John Doe" as respondents, but only Mr. Smith has appeared and there is no indication in any of the papers submitted to the court that there are any other occupants of the premises.
(1) creation of conditions in the apartment which led to the placement of violations by the New York City Department of Housing Preservation and Development;
(2) refusal or failure to provide access to the landlord and its agents to correct the violations;
(3) performance of unauthorized repairs and alterations in the apartment including removal and installation of sheet rock, plumbing fixtures, circuit breaker panel, electrical wiring, kitchen cabinets, door frames, doors and ceiling fixtures;
(4) refusal to cease construction after Petitioner's managing agent told him to;
(5) refusal to provide evidence that the unauthorized plumbing and electrical work was performed by a licensed plumber and electrician; and
(6) failure to comply with Court Orders issued in an HP Action between the parties, Index # HP 6447/16, prohibiting him from performing alterations.
The Seven Day Notice also itemizes 23 instances of nuisance behavior "witnessed on video", primarily comprised of construction workers entering and leaving Respondent's apartment while carrying building materials, boxes, garbage bags and tools.
The Notice of Petition and Petition are dated April 26, 2016 and the case first appeared on the Court's calendar on May 18, 2016. The case was adjourned for Respondent to retain and appear by counsel, which he did on June 14, 2016, at which time Respondent's attorney filed an Answer raising three affirmative defenses:
(1) Respondent's resort to self-help was warranted because of conditions in the apartment which Petitioner refused to "adequately remedy";
(2) Retaliatory eviction due to Petitioner's commencement of the proceeding "in response to a lawful exercise of the Respondent's civil rights"; and
(3) Discrimination based on disability due to Petitioner's having "commenced [this proceeding] in a discriminatory manner" against Respondent, who is a "disabled veteran ".
In his Response to Petitioner's Demand for Verified Bill of Particulars at ¶ 8, a copy of which is attached as Exhibit J to Petitioner's cross-motion, Respondent through his attorney identified this statement as having been made in error and corrected it by explaining that he "is not a veteran of any military service."
Respondent's Answer also includes a counterclaim for attorney's fees.
After several adjournments, Respondent filed a motion for summary judgment on September 12, 2016, Petitioner filed a cross-motion to strike Respondent's affirmative defenses and/or for summary judgment on October 20, 2016 and both sides submitted opposition and reply. Respondent supports his motion with his attorney's affirmation and his own affidavit, sworn to on September 1, 2016, in which he describes the conditions he corrected and denies Petitioner's claim that he made alterations to "intentionally damage" the apartment or to harass Petitioner or other tenants in the building. In his affirmation, Respondent's attorney makes three arguments: First, that the proceeding should be dismissed for failure to serve a predicate "Notice to Cure" which is required because the case is based not on nuisance but on breach of a substantial obligation of the tenancy which, under Section 2524.3(a) of the Rent Stabilization Code and the original lease between the parties, must be preceded by such a notice. Respondent cites paragraph 27 of the lease which "expressly prohibits the tenant from making alterations" to the apartment, Affirmation in Support at ¶ 11, and further cites paragraph 17 of the lease which requires the landlord to provide 10 days' notice to cure any alleged failure "to comply with any obligations of this lease."
While Respondent's counsel states that "A true and accurate copy of the Lease is annexed hereto as Exhibit ‘C" ’, Affirmation in Support at ¶ 11, neither a copy of the lease nor any other documents are attached as Exhibits to the moving papers. Under Rule 3212(b) of the CPLR, a party seeking summary judgment is required to attach to the moving papers a copy of the pleadings—that is, in a case like this one, the petitioner's complete Holdover Petition and respondent's Answer thereto—and the failure to do so is grounds for denying a motion for summary judgment, see e.g., Washington Realty Owners, LLC v. 260 Washington Street, LLC (105 A.D.3d 675, 964 N.Y.S.2d 137 [1st Dep't 2013] ). The court exercises its discretion under CPLR § 2001 to overlook this error and will rule on the merits of the summary judgment motion, and notes that copies of the pleadings, along with a copy of the lease, are attached to Petitioner's cross-motion.
Respondent's second argument is that, "the alterations undertaken by Respondent in the Subject Premises were necessary due to the Petitioner's failure to repair various conditions therein," Affirmation in Support at ¶ 17, and that they "certainly have not caused any permanent or lasting injury to the Subject Premises to warrant Respondent's eviction." Affirmation in Support at ¶ 20.
Respondent's third argument is a request that if the Court finds that he breached a substantial obligation of his tenancy, he should be entitled to post a bond and/or be given a post-judgment opportunity to cure.
Petitioner opposes Respondent's motion, and explains that the basis for the proceeding "is not merely the alterations made, but the consistent pattern of willful and intentional conduct that damaged the property and thus hurt Petitioner, which as the record shows was designed to annoy or harass Petitioner, due to Petitioner's mere good faith (and proper) refusal to allow [Respondent] to make his own repairs." Petitioner's Memorandum of Law at p. 9. Petitioner argues that Respondent did not even include a defense in his Answer related to lack of a pre-petition notice to cure, and, in any event, that paragraph 17 of the lease and Section 2524.3(b) of the Rent Stabilization Code both permit termination of the tenancy on the ground of nuisance without a predicate notice to cure.
Petitioner cross-moves to dismiss all three of Respondent's affirmative defenses, arguing that: (1) Respondent did not provide Petitioner with proper notice and an opportunity to correct the conditions before undertaking alterations and repairs himself, which are the subject of a parallel HP Action; (2) Respondent's complaint to the New York City Human Rights Commission ("NYCHRC") cannot be the basis for a claim of retaliatory eviction and, in any event, Petitioner has a good faith, non-discriminatory reason for bringing this proceeding; and (3) Respondent has not stated a claim that this proceeding was commenced in a discriminatory manner and, moreover, the ramp issue was already resolved by the Environmental Control Board and the parking space issue is pending at the NYCHRC, which has primary jurisdiction.
Petitioner also cross-moves for summary judgment in its favor, arguing that the facts it has asserted conclusively demonstrate that Respondent engaged in "a consistent pattern of willfully, purposefully, and/or knowingly retaliating, harassing and/or annoying Petitioner and actually damaging the apartment, and potentially other parts of the building." Petitioner's Memorandum of Law in Opposition to Respondent's Motion and in Support of Petitioner's Cross–Motion at p. 13.
Petitioner supports its opposition and cross-motion with a voluminous set of documents, including affirmations of two of its attorneys, affidavits of three of its agents (superintendent Cristino Rosario, Vice President Matthew Schmelzer and managing agent Miguel Leon) and copies of a number of photographs and documents including the pleadings, its Demand for a Bill of Particulars and Respondent's response thereto, Respondent's initial lease, Respondent's Verified Complaint filed at the NYCHRC and Petitioner's Verified Answer thereto.
On reply and in opposition to Petitioner's cross-motion Respondent's attorney argues that Respondent's affirmative defenses should not be stricken and that Petitioner is not entitled to summary judgment and submits a second affidavit from Respondent, sworn to November 10, 2016, asserting that he undertook the repairs to address "the deplorable conditions" he had been living in, Respondent's Affidavit at ¶ 4; that he "complained to management on numerous occasions", id. at ¶ 5; and that he filed his complaint with the NYCHRC because of "Petitioner's irrational refusal to provide me with a parking space which I was entitled to," id. at ¶ 4.
On reply, Petitioner argues that Respondent has failed to create a genuine triable issue of fact and reiterates its request that Respondent's affirmative defenses be stricken and that it be granted summary judgment.
DISCUSSION
The Court will first address Petitioner's cross-motion to strike Respondent's three affirmative defenses. On a motion to dismiss affirmative defenses pursuant to CPLR 3211(b), the moving party bears the burden of demonstrating that the defenses are without merit as a matter of law. See, e.g., Vita v. New York Waste Servs, LLC (34 A.D.3d 559, 559, 824 N.Y.S.2d 177 [2nd Dep't 2006] ); Town of Hempstead v. Lizza Indus (293 A.D.2d 739, 740, 741 N.Y.S.2d 431 [2nd Dep't 2002] ). In determining a motion to dismiss a defense, "a defendant is entitled to the benefit of every reasonable intendment of the pleading, which is to be liberally construed. If there is any doubt as to the availability of a defense, it should not be dismissed." Warwick v. Cruz (270 A.D.2d 255, 255, 704 N.Y.S.2d 849 [2nd Dep't 2000] [internal citation omitted ] ). A defense should not be stricken where there are questions of fact requiring trial. See, e.g., Atlas Feather Corp v. Pine Top Ins Co (128 A.D.2d 578, 578–579, 512 N.Y.S.2d 844 [2nd Dep't 1987] ); Martense v. O'Leary (40 Misc.3d 1201[A] ), 972 N.Y.S.2d 144 [Dist Ct Nassau Co 2013] ) (denying landlord's motion to strike affirmative defense of retaliatory eviction "since issues of fact exist that can be best resolved by a full trial").
The first of Respondent's three affirmative defenses is that he resorted to "self-help" because of "Petitioner's refusal to adequately remedy the situation." Granting Respondent "the benefit of every reasonable intendment", and for the reasons set forth below with regard to the parties' cross-motions for summary judgment, the Court denies Petitioner's request to strike this defense. Numerous factual questions have been raised: Whether and, if so, when and how Respondent provided notice to Petitioner of the conditions that needed repair; whether the circumstances were such as to justify his resort to "self-help", see, e.g., Katurah Corp v. Wells (115 Misc.2d 16, 17, 454 N.Y.S.2d 770, 771 [App Term 1st Dep't 1982] ); Jackson v. Rivera (65 Misc.2d 468, 470, 318 N.Y.S.2d 7, 10 [Civ Ct N.Y. Co 1971] ); and whether Respondent's actions constituted "a continuous invasion of rights—‘a pattern of continuity or recurrence of objectionable conduct" ’, Domen Holding Co. v. Aranovich (1 N.Y.3d 117, 124, 802 N.E.2d 135, 139, 769 N.Y.S.2d 785, 789 [2003] ), or were taken with the intent to harass Petitioner and/or other tenants in the building, Sharp v. Norwood (223 A.D.2d 6, 8, 643 N.Y.S.2d 39, 42 [1st Dep't 1996] ), are all disputed and cannot be resolved without a trial.
Similarly, the court declines to strike Respondent's second affirmative defense of retaliatory eviction. While worded broadly in the Answer—"Petitioner has commenced this proceeding in response to a lawful exercise of the Respondent's civil rights"—Respondent provides more details in his Response to Petitioner's Demand for a Bill of Particulars at ¶ 5: "This holdover proceeding constitutes a retaliatory eviction against Respondent because it was commenced only after a Human Rights Complaint was filed by Respondent due to Petitioner's failure to provide a ramp or handicap parking." This defense arises under Section 223–b(1) of the New York State Real Property Law, which states:
Respondent's NYCHRC Complaint, a copy of which is attached to Petitioner's cross-motion as Exhibit L, addresses Petitioner's failure to provide a parking space in one of its two adjoining parking lots and does not mention a ramp.
No landlord of premises or units to which this section is applicable shall serve a notice to quit upon any tenant or commence any action to recover real property or summary proceeding to recover possession of real property in retaliation for:
a. A good faith complaint, by or in behalf of the tenant, to a governmental authority of the landlord's alleged violation of any health or safety law, regulation, code, or ordinance, or any law or regulation which has as its objective the regulation of premises used for dwelling purposes or which pertains to the offense of rent gouging in the third, second or first degree; or
b. Actions taken in good faith, by or in behalf of the tenant, to secure or enforce any rights under the lease or rental agreement, under section two hundred thirty-five-b of this chapter, or under any other law of the state of New York, or of its governmental subdivisions, or of the United States which has as its objective the regulation of premises used for dwelling purposes or which pertains to the offense of rent gouging in the third, second or first degree; .
Subsection (5) of the statute creates a rebuttable presumption that the landlord acted in retaliation if the tenant establishes that the landlord served a notice to quit upon the tenant or commenced a summary proceeding to recover possession from the tenant within six months after the tenant files a complaint described in subdivision (1)(a). Where the presumption applies, the landlord must provide a credible explanation of a non-retaliatory motive for its acts; upon such a showing, the burden of proof then shifts back to the tenant to disprove the landlord's explanation by a preponderance of the evidence. The question here, however, is not whether each side has met its ultimate burdens of proof but whether Petitioner has established that Respondent's defense "is without merit as a matter of law", Vita v. New York Waste Servs, LLC, supra, and should be dismissed.
A tenant's good faith complaint against a landlord of disability discrimination, filed at the NYCHRC, falls within the scope of Section 223–b of the Real Property Law, as it is a complaint "to a governmental authority of the landlord's alleged violation of ... [a] law or regulation which has as its objective the regulation of premises used for dwelling purposes", RPL § 223–b(1)(a), and/or an action by a tenant "to secure or enforce rights under the lease under any other law of the state of New York, or of its governmental subdivisions which has as its object the regulation of premises used for dwelling purposes", RPL § 223–b(1)(b). See Khazanov v. 2800 Coyle St Owners Corp (2015 N.Y. Misc. LEXIS 2819, 2015 N.Y. Slip Op 31437[U][Sup Ct Kings Co 2015] )(denying landlord's motion to dismiss tenant's claim of retaliatory eviction under RPL § 223–b and holding that the court "cannot reject outright plaintiff's factual assertion that the non-payment/eviction proceeding was commenced in retaliation for plaintiff's filing of the NYSDHR [New York State Division of Human Rights] complaint"). Further, parking space issues may be covered by RPL § 223–b. Raderman v. Talia Mgmt Co (170 Misc.2d 622, 651 N.Y.S.2d 850 [Sup Ct N.Y. Co 1996] )(preliminary injunction granted to plaintiff-tenant with claim of retaliatory eviction from a parking space where "the testimony at the hearing indicates that if defendants are permitted to lease the valuable parking space to another tenant, plaintiff will not be able to park his car clearly an essential service and substantial term of a tenancy in this city").
Accordingly, the timeline is key, as Respondent's retaliatory eviction claim may be heard only if the landlord served him with a termination notice after it learned of the NYCHRC complaint. An examination of the relevant documents shows that:
• On March 23, 2016, Respondent filed his complaint at the NYCHRC (this is evident from the face of the complaint);
• On April 8, 2016 the NYCHRC prepared and date-stamped an envelope to send Petitioner a copy of Respondent's complaint (this is evident from the Pitney Bowes postage machine date-stamp on the NYCHRC envelope addressed to Petitioner);
• On April 11, 2016, the NYCHRC envelope was in transit to Petitioner (this is evident from the postmark date-stamped on the face of the envelope);
• On April 14, 2016, Petitioner personally served Respondent with its predicate notice, dated April 7, 2016, (as per Affirmation of Service of Scott I. Edelstein; additional copies were served by regular and certified mail on April 13, 2016, as per Affidavit of Service of Glenis Scott Marlow dated April 13, 2016).
The timing of the critical events is very close, and from the evidence in the record it cannot be determined with certainty whether Petitioner served the termination notice before or after receiving a copy of the NYCHCR complaint. The assertions of Petitioner's Vice President Matthew Schmelzer in his sworn affidavit (Exhibit W to Petitioner's cross-motion) at ¶ 9 that he asked his attorneys to start drafting the notice of termination "on or about March 15, 2016", and that he did not receive a copy of the NYCHCR complaint until April 13, 2016, id. at ¶ 13, 651 N.Y.S.2d 850, raise issues of fact to be decided at trial.
The court will give Respondent the benefit of the doubt and deny Petitioner's request to strike Respondent's second affirmative defense. Whether each side can meet its various and shifting burdens of proof at trial, and what the ultimate outcome will be, of course remains to be seen. See, e.g., Graham Ct Owner's Corp v. Taylor (115 A.D.3d 50, 978 N.Y.S.2d 213 [1st Dep't 2014] ); Walentas v. Johnes (257 A.D.2d 352, 354, 683 N.Y.S.2d 56, 58 [1st Dep't 1999] ); Choudhury v. Ramtahal (24 Misc.3d 1211[A], 890 N.Y.S.2d 368 [Civ Ct Kings Co 2009] ).
The court does grant Petitioner's request to strike Respondent's third affirmative defense, which he pled broadly-"Petitioner commenced this proceeding in a discriminatory manner"-and more specifically spelled out in his Response to Petitioner's Demand for a Bill of Particulars at ¶ 9: "Petitioner acted in a discriminatory manner by refusing to provide the Respondent with a parking space and/or handicap ramp." Petitioner's alleged refusal to grant Respondent's request for a parking space is the subject of Respondent's complaint filed at the NYSHRC, which not only has primary (although concurrent) jurisdiction over disability discrimination complaints but also is the forum at which Respondent chose to litigate this issue. Respondent did not raise any issue about a ramp at the NYCHRC, although the Environmental Control Board addressed it in a Decision and Order dated July 2, 2012, which found that "the concrete replacement was maintenance and repair work and did not require the installation of access ramp."
Turning now to Respondent's motion and Petitioner's cross-motion for summary judgment, the only legal issue which is ripe for summary judgment is Respondent's claim that Petitioner's failure to serve a Notice to Cure mandates dismissal of this proceeding. Petitioner correctly points out that Respondent did not raise this issue as a defense in his Answer. However, this is essentially a claim of failure to state a cause of action under CPLR § 3211(a)(7), and such a defense "is not waived by failure to move prior to answer or by failing to state it in the answer ... [and] it is not required to be stated to be preserved", Riland v. Frederick S Todman & Co (56 A.D.2d 350, 351, 393 N.Y.S.2d 4, 5 [1st Dep't 1977] ) quoting Prompt Electrical Supply Co v. W E Tatem, Inc (43 Misc.2d 333, 250 N.Y.S.2d 906 [Sup Ct Nassau Co 1964] ). Further, given the general rule of liberality in granting amendment of pleadings as long as there is no prejudice to the opposing party, see, e.g., Seda v. New York City Housing Authority (181 A.D.2d 469, 581 N.Y.S.2d 20 [1st Dep't 1992] ), and it being an appropriate exercise of the court's discretion under CPLR § 2001 to overlook this omission, the court will address this claim as if it were stated in Respondent's Answer.
The starting point for determining whether or not Petitioner was required to serve Respondent with a predicate Notice to Cure is the lease, paragraphs # 17 and # 27 of which read in their entirety as follows:
17th—DEFAULT: If the Tenant is dispossessed by legal action the Landlord may enter and take possession of the premises without being liable to prosecution for this action, and may re-rent the apartment. The Tenant will be liable to the Landlord for any and all expenses related to the entering, repairing, redecorating and re-renting. In the event the Tenant fails to comply with any obligations of this lease or fails to comply with rules or regulations in this lease after 10 days' notice to cure such failure or creates a nuisance or engages in conduct detrimental to the safety of other tenants or intentionally damages the property, or disturbs other tenants, then the Landlord may terminate the tenancy and lease on seven days' written notice to the Tenant. Notwithstanding the foregoing, the Landlord shall not be required to give any preliminary notice to the Tenant prior to initiating a non-payment summary proceeding except such notice or notices as may be required by law. Any DEMAND for rent may be made orally or in writing at the option of the Landlord.
27th—RULES AND REGULATIONS: a) The Tenant shall not install a waterbed, laundry machine, dishwasher, air conditioner, refrigerator, sink, kitchen cabinets, stove or other mechanical equipment or an antenna, in or outside the apartment, without the written consent of the Landlord. If Tenant is permitted and does install a window air conditioner, the Landlord is entitled to receive a rent increase. The rent increase is payable to the Landlord on the first day of the month following installation, b) the Tenant shall not apply wallpaper or wall covering to the walls or ceilings. When the Tenant vacates the apartment, it shall be left painted in the same off-white color as when rented. The Tenant may not paste any carpet, tile or linoleum to the floors, c) the Tenant shall not have any dog, cat or other animal on the premises unless permitted in writing by the Landlord. In no event shall any dog, cat or other animal be permitted in any elevator or in any public portion of the building unless carried or on a leash, d) the sidewalks, entrances, passages, courts, elevators, vestibules, stairways or halls must not be blocked by any Tenant or used for any purposes other than as a means of passing to and from the premises. No garbage cans, carriages, supplies or other articles shall be placed in the halls or on the staircase landings. Nothing shall be hung from the windows or balconies or placed upon the window sills or fire-escapes. No rugs or mops shall be shaken from any window on the premises. Fire escapes shall not be obstructed in any manner, e) garbage and refuse must be brought to the basement or elsewhere in such a manner that the Landlord may direct. No dumbwaiter service is provided, f) the Tenant must provide a key to any and all locks to the Tenant's apartment to the Landlord or his agent, if requested, and the Landlord must pay to the Tenant the reasonable cost of the keys. Tenant shall not install a double-keyed cylinder on any lock, g) No tenant shall conduct or permit to be conducted vocal or instrumental instructions, h) all deliveries must be made through the basement of the building, i) Tenant shall not install any gate on any window unless the gate shall be the type approved by the law, j) Tenant shall make no alterations to the apartment, structural or otherwise.
A careful reading of these provisions indicates that, under paragraph 17, whereas a 10–day predicate notice to cure is required before the landlord can terminate the tenancy of a tenant who "fails to comply with any obligations of this lease or fails to comply with rules or regulations [set forth in paragraph # 27] in this lease", no such opportunity to cure is required, and the landlord is permitted to terminate the tenancy upon 7 days' notice, where, in the alternative (note that the phrase is preceded by the word "or"), the tenant "creates a nuisance or engages in conduct detrimental to the safety of other tenants or intentionally damages the property, or disturbs other tenants".
It is beyond question that unless public policy is violated, the parties to a civil dispute are free to chart their own litigation course. Mitchell v. New York Hospital (61 N.Y.2d 208, 214, 461 N.E.2d 285, 288, 473 N.Y.S.2d 148, 151 [N.Y. 1984] ); Kass v. Kass (235 A.D.2d 150, 162, 663 N.Y.S.2d 581, 590 [2d Dep't 1997] ); Mill Rock Plaza Assocs v. Lively (224 A.D.2d 301, 638 N.Y.S.2d 34, 34–35 [1st Dep't 1996] ); Trump v. Trump (179 A.D.2d 201, 204, 582 N.Y.S.2d 1008, 1009 [1st Dep't 1992] ); Riveredge Apt Co v. Rosenfeld (2003 N.Y. Misc. LEXIS 470, 2003 N.Y. Slip Op 50814[U][App Term 1st Dep't 2003] ).
Here, while some of Petitioner's allegations of Respondent's conduct could constitute violations of the "rules and regulations" set forth in paragraph # 27 of the lease (for example, prohibitions on the unauthorized installation of kitchen cabinets and the making of alterations to the apartment), that does not mean they could not also constitute a "nuisance" or "conduct detrimental to the safety of other tenants". And whereas notice of a 7–day opportunity to cure is required under the lease before the landlord could proceed on a breach of lease claim, no such predicate notice to cure is required where the landlord chooses, as it has done here, not to proceed on such a claim and instead to proceed on a nuisance theory.
The decisions in Waring Barker Company v. Santiago (1998 N.Y. Misc. LEXIS 749, 219 NYLJ 15 [App Term 1st Dep't 1998] )(nuisance holdover based on tenant's "failure to grant access and offensive behavior against another building occupant") and Unicorn 151 Corp v. Small (181 Misc.2d 304, 693 N.Y.S.2d 883 [Civ Ct Kings Co 1999] )(nuisance holdover based on tenant's excessive clutter, creating a "Collyers" condition), are not on point, as the language of the leases in both of those cases was different from the language of Respondent's lease. The Santiago and Small leases both specifically required the landlord to serve a pre-litigation Notice to Cure where the tenant engaged in, respectively, "objectionable conduct" and "improper conduct by tenant annoying other tenants" and did not provide the option of proceeding under a different theory of nuisance without a predicate notice to cure.
Certainly, as explained by the Court of Appeals in Domen Holding, supra, "a high threshold of proof would be required for eviction" under a nuisance theory; however, Petitioner is free to chart its course in this litigation, is free to choose to proceed on a theory of nuisance rather than breach of lease and, having done so, was not required to provide Respondent with a pre-litigation notice of an opportunity to cure. Accordingly, Respondent's motion for summary judgment based upon the absence of a predicate Notice to Cure is denied.
With regard to the balance of Respondent's motion, and Petitioner's cross-motion, for summary judgment, these motions are denied as there are simply too many issues of fact. Summary judgment is a drastic remedy which should not be granted where there is any doubt as to the existence of material and triable issues of fact. Sillman v. Twentieth Century–Fox Film Corp (3 N.Y.2d 395, 404, 144 N.E.2d 387, 165 N.Y.S.2d 498, 505 [1957] ). The court should not pass on issues involving credibility, as the function of summary judgment is "issue finding, not issue determination". Rodriguez v. Parkchester South Condominium, Inc (178 A.D.2d 231, 577 N.Y.S.2d 52, 53 [1st Dep't 1991] ). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. Winegrad v. New York Univ. Med. Center (64 N.Y.2d 851, 853 [1985] ); Zuckerman v. New York (49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]. Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Alvarez v. Prospect Hospital (68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 925–926 [1986] ); Zuckerman v. New York (49 N.Y.2d at 562, 427 N.Y.S.2d at 598, 404 N.E.2d 718 ).
Here, Respondent has not made a prima facie showing of the absence of material issues of fact and entitlement to judgment as a matter of law. Even if the court were to decide that Respondent had met its initial burden, Petitioner has established the existence of material issues of fact which require a trial. As in Domen Holding, and many of the other cases cited by both parties' attorneys, there are issues of fact as to, inter alia, whether Respondent's actions were reasonable, necessary and justifiable, whether Respondent caused damage to Petitioner's property and whether Respondent's actions constituted "a continuous invasion of rights—‘a pattern of continuity or recurrence of objectionable conduct" ’, Domen Holding Co, supra, or were taken with the intent to harass Petitioner and/or other tenants in the building, Sharp v. Norwood, supra. "It may well be that a ‘recurring or continuing pattern’ lies here, but such determination should be made upon a trial of the facts and is not proper for summary disposition." Domen Holding, supra, and see, e.g., Riveredge Apt Co v. Rosenfeld (2003 N.Y. Misc. LEXIS 470, 2003 N.Y. Slip Op 50814[U] [App Term 1st Dep't 2003] ) (affirming lower court's post-trial decision finding there to be "no material breach of the ‘no alterations' clause of the lease by tenant's replacement of old and defective kitchen appliances and rusted cabinets which landlord had not repaired"); Mengoni v. Passy (254 A.D.2d 203, 679 N.Y.S.2d 122 [1st Dep't 1998] ) (affirming lower court's post-trial decision and declining "to disturb the factual determination reached by the Civil Court and a majority of the Appellate Term that the appliances and items removed and replaced or fixed by respondent—including kitchen cabinets, air conditioners, refrigerators and bathroom sink—were in a defective state, and that the landlord did not respond to tenant's repeated complaints and demands to have the items fixed").
In light of this ruling, there is no need at this time to address Respondent's third argument that he should be given a post-judgment opportunity to cure.
CONCLUSION
As set forth above, Petitioner was not required to serve a predicate notice to cure and there are issues of fact necessitating a trial. Accordingly, Respondent's motion and Petitioner's cross-motion for summary judgment are denied. Petitioner's cross-motion to strike Respondent's three affirmative defenses is granted to the extent of striking the third such affirmative defense. This proceeding is restored to the court's calendar for trial on February 9, 2017.
This constitutes the Decision and Order of this Court, copies of which are being mailed out or otherwise made available in court to the parties' attorneys.