Opinion
Index No. L&T 301876/23
12-26-2023
Cambridge Leasing Property LLC, Petitioner v. Solangel Cachimbo, et al., Respondents
Counsel for Petitioner: Daniels Norelli Cecere & Tavel, PC Counsel for Respondent: New York Legal Assistance Group
Unpublished Opinion
Counsel for Petitioner: Daniels Norelli Cecere & Tavel, PC
Counsel for Respondent: New York Legal Assistance Group
LOGAN J. SCHIFF, J.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of Respondent's motion to dismiss (Mot. Seq. #1): NYSCEF 6-10; and Respondent's motion to withdraw (Mot. Seq. #2): NYSCEF 11-15.
Upon the foregoing cited papers, the court's decision and order is as follows:
RELEVANT BACKGROUND AND PROCEDURAL
HISTORY
This is a nuisance holdover in a rent-stabilized apartment commenced in January 2023 pursuant to Rent Stabilization Code § 2524.3(b) following service of a seven-day notice of termination (NYSCEF 1). Respondent, through the nonprofit assigned counsel NYLAG, has filed a motion to dismiss claiming the termination notice is facially deficient. After the motion was fully briefed but before oral argument, NYLAG moved by order to show cause to withdraw as counsel for Respondent based on her failure to communicate. The court heard argument on both motions on December 14, 2023, during which Respondent did not appear.
DISCUSSION
1. Motion to Withdraw
NYLAG's motion to withdraw as counsel for Respondent is denied for failure to establish good cause at the present juncture (see 104-106 Sullivan Street LLC v Estate of Marie Borga, 29 Misc.3d 135 [App Term, 1st Dept 2010]; Benefield v City of New York, 824 N.Y.S.2d 889 [Supreme Court, Bronx Co 2006]). An attorney seeking to withdraw due to irreconcilable differences must demonstrate that their client's conduct substantially interferes with the attorney- client relationship and cannot be premised merely on an unwillingness to settle or the prospect of an unfavorable trial result (see Countryman v Watertown Hous. Auth., 13 Misc.3d 632 [App Term, 1st Dept 2006]).
Here, the crux of NYLAG's motion is that it has been unable to reach Respondent for several months to discuss her case or an impending settlement offer of probation. Although a client's lack of communication can be a ground for withdrawal where it has become impossible for counsel to effectively carry out their employment, the court is not persuaded that NYLAG's withdrawal is necessary in the present procedural posture. Of particular note, according to NYLAG and undisputed by Petitioner, Respondent is a 75-year-old long-term rent-stabilized tenant with physical disabilities, who is accused of conduct that if anything reflects an individual experiencing a mental health crisis (see Affidavit of Respondent Cachimbo, NYSCEF 7, and Attorney Affirmation in Reply of Dana Christensen, NYSCEF 10 at ¶ 13). Given the strong public policy for avoiding the forfeiture of rent-regulated housing (see 2246 Holding Corp v Nolasco, 52 A.D.3d 377 [1st Dept 2008]), New York State's constitutional mandate to provide protection for the needy (see 111-50 Realty Corp. v Melgar, 139 N.Y.S.3d 778 [Civ Ct, Queens Co 2020], citing Tucker v Toia, 43 N.Y.2d 1 [1977]), and the fact that NYLAG's representation arose in the context of the New York City Universal Access to Counsel law, which is designed to ensure low-income New Yorkers are not faced with defending evictions without legal representation (see 2247 Webster Ave. HDFC v Galarce, [Civ Ct, Bronx Co 2019]), withdrawal in a case of this nature should be a last resort. NYLAG's papers do not meet this high bar in the current pre-trial posture with a fully briefed motion to dismiss pending. Nor is NYLAG's inability to discuss a proposed settlement offer a basis for withdrawal. Accordingly, the motion to withdraw is denied without prejudice to renewal at a later date.
2. Respondent's Motion to Dismiss
Respondent argues that the allegations in the notice of termination are not of a sufficiently serious or continuing nature so as to state a cause of action for nuisance. In a nuisance holdover, a petitioner must serve a predicate notice containing allegations that are detailed enough that the respondent is "adequately apprised as to the grounds upon which [the proceeding] was based, allowing them to prepare a legal defense" (Domen Holding Co. v Aranovich, 1 N.Y.3d 117, 125 [2003]). "[N]ot every annoyance will constitute a nuisance. Nuisance imports a continuous invasion of rights-a pattern of continuity or recurrence of objectionable conduct" (Harris v Miranda, 219 A.D.3d 1498 [2d Dept 2023], quoting Domen Holding Co., 1 N.Y.3d at 124). In assessing the adequacy of a predicate notice, "the appropriate test is one of reasonableness in view of the attendant circumstances" (Hughes v. Lenox Hill Hosp., 226 A.D.2d 4, 18 [1st Dept 1996], lv denied 90 N.Y.2d 829 [1997]; see also Tzifil Realty Corp. v. Rodriguez, 155 N.Y.S.3d 525 [App Term, 2d Dept, 2d 11th & 13th Dists 2021]).
Here, Petitioner's notice of termination dated January 11, 2023, contains three allegations:
A. On or about December 23, 2022, the management's office was informed that you (tenant from Apt. 6P) attacked the porter with a hammer on his left hand while in the compactor room. You approached the porter claiming that he cut off your lights, and put garbage on your food.
B. The Super Hector said that you are extremely aggressive and he has been approached by you on several occasions claiming false accusations. Both the Super Hector and the porter Harold are both very concerned for their safety.
C. Hector later advised that he found his doorknob broken (smashed) and had to be replaced.
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 N.Y.S.3d 525 at *2). Moreover, while not every individual assertion in the notice must include specific dates and times (see Pinehurst Const. Corp. v Schlesinger, 38 A.D.3d 474 [1st Dept 2007]), conclusory allegations that are so vague as to deprive the tenant of any meaningful ability to prepare a defense should be dismissed as defective (see Montemuino v Gelber, 939 N.Y.S.2d 741 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Here, the allegations in paragraphs B and C of Petitioner's termination notice are so devoid of specific factual statements of nuisance conduct directly attributable to Respondent, as opposed to mere assertions of personal animus between neighbors, that they are defective and must be dismissed and severed from the Petition (see id.; 751 Union St. LLC v Charles, 56 Misc.3d 141 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).
Having pruned Petitioner's termination notice, the court finds that the sole remaining claim, and indeed the only one of substance, namely that Respondent "attacked the porter with a hammer on his left hand while in the compactor room" while reprehensible and a potential breach of lease if proven, does not support a cause of action sounding in nuisance. Because a nuisance imports a continuing invasion of rights that "threatens the comfort and safety of others in the building" (Mautner-Glick v Tunne, 966 N.Y.S.2d 347 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012], quoting Frank v Park Summit Realty Corp., 175 A.D.2d 33 [1st Dept 1991]), generally one isolated incident, even where involving serious misconduct, cannot support a cause of action for nuisance (see Domen Holding Co. v Aranovich, 753 N.Y.S.2d 57 [1st Dept 2003] ["We have rejected eviction on the basis of one isolated incident which, though serious, did not merit eviction, especially when there was no indication that the tenant posed a continuing risk," citing Spand v Franco, 242 A.D.2d 210 [1st Dept 1997]], reversed 1 N.Y.3d 117, 125 [2003]; Metropolitan Life Ins. Co. v Moldoff, 187 Misc. 458 [App Term, 1st Dept 1946], affd 272AD 1039 [1st Dept 1947]; 772 E. 168 St. LLC v Holmes, 110 N.Y.S.3d 798 [Civ Ct, Bronx Co 2018] [collecting cases rejecting nuisance allegations based on one incident]).
While there is limited case law concluding that one incident of extremely violent behavior can constitute a nuisance (see e.g. 160 W. 118th St. v Gray, 801 N.Y.S.2d 238 [Civ Ct, NY Co 2004] [denying motion to dismiss where respondent was alleged to have shot her son while inside the subject apartment]), the allegation here that Respondent "attacked the porter with a hammer on his left hand" with no claim of physical injury or additional supporting details of severity or continuity, does not, standing alone, plead a nuisance.
Accordingly, as Petitioner is "bound by the notice served" (Singh v Ramirez, 872 N.Y.S.2d 693 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]) and "none of the allegations in landlord's notice of termination sufficiently support landlord's claim of nuisance, the petition must be dismissed" (Hollis Partners, LLC v Artis, 152 N.Y.S.3d 545 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). This constitutes the decision and order of the court.