Opinion
61645/08.
Decided August 2, 2008.
Jeffrey S. Goldberg, New York City, for petitioner.
Martha Weithman, West Side SRO Law Project, New York City (Deepa Varma of counsel), for respondent.
In this summary holdover proceeding, respondent is the record tenant of Room 3 in a single-room-occupancy (SRO) building located at 241 West 123rd Street in New York County.
Petitioner's termination notice dated February 27, 2008, terminated respondent's tenancy on alleged nuisance grounds. The notice lists 17 supposed incidents. Respondent answered on April 18, 2008.
Petitioner moves to strike respondent's first defense: that the petition should be dismissed because it does not state a cause of action. According to respondent, petitioner alleges insufficient facts in the termination notice and petition. Respondent argues that petitioner's motion to dismiss should be denied in its entirety under CPLR 3211 (b). Respondent cross-moves for summary judgment under CPLR 3212 to dismiss the petition on the ground that the termination notice does not contain sufficient detail to maintain a nuisance proceeding.
The court dismisses several alleged incidents contained in the termination notice. These incidents do not state a cause of action in nuisance. Petitioner's motion to strike respondent's first defense is denied.
For proceedings in which the basis to evict a tenant is something other than not paying rent, the tenant must be provided with written notice. (Rent Stabilization Code (RSC) (9 NYCRR) § 2524.2 [a].) The notice "shall state the ground . . . upon which the owner relies for removal or eviction of the tenant, the facts necessary to establish the existence of such ground, and the date when the tenant is required to surrender possession." (RSC § 2524.2 [b].) Tenants may be removed if they commit or permit a nuisance in the subject premises. (RSC § 2424.3 [b].) A nuisance occurs when a "tenant engages in a persistent and continuing course of conduct evincing an . . . unreasonable or unlawful use of the property to the annoyance . . . or damage of others, the primary purpose of which is intended to harrass the owner or other tenants . . . by interfering substantially with their comfort or safety." ( Id.; accord Domen Holding Co. v Aranovich , 1 NY3d 117 , 124 ["Nuisance imports a continuous invasion of rights — a pattern of continuity or recurrence of objectionable conduct.'"], quoting Frank v Park Summit Realty Corp., 175 AD2d 33, 34 [1st Dept 1991], mod on other grounds 79 NY2d 789.)
A termination notice that contains insufficient facts to establish a cause of action must be dismissed. ( See e.g. Goodhue Residential Comp. v Lazansky, 1 Misc 3d 907[A], 2003 NY Slip Op 51559[U], *5, 2003 WL 23148836, at *4, 2003 NY Misc LEXIS 1662, at *5 [Hous Part, Civ Ct, NY County, Dec. 29, 2003], citing Jewish Theol. Seminary of Am. v Fitzer, 258 AD2d 337, 338 [1st Dept 1999 mem].) The court must consider the adequacy of the predicate notice "using the standard of reasonableness in view of all attendant circumstances.'" ( Black Veterans for Social Justice Inc. v Killeen, NYLJ, Mar. 14, 2007, at 18, col 1, 2007 NY Misc LEXIS 982, at *3 [Hous Part, Civ Ct, NY County, Mar. 6, 2007], quoting Hughes v Lenox Hill Hosp., 226 AD2d 4, 18 [1st Dept 1996], lv dismissed 90 NY2d 829.) A termination notice must adequately inform tenants of the grounds for eviction so they can properly defend themselves. ( Black Veterans, 2007 NY Misc Lexis, at *3, citing 75 Monroe St. LLC v Moy , 12 Misc 3d 1175 [A], 2006 NY Slip Op 51238[U], 2006 WL 1887514, 2006 NY Misc LEXIS 1660 [Hous Part, Civ Ct, NY County, June 29, 2006] [holding that termination notice based on nuisance was insufficient because it did not allege pattern of continuity or ongoing conduct].)
The first incident concerns a fire in November 2007 that respondent allegedly caused by her "excessive use of electrical appliances in [her] room." Petitioner claims that the fire caused the electricity on a floor to be "shut off" for an unknown time period but otherwise does not allege the extent of the fire — was it a spark or a three-alarm blaze? — or what damage it caused or what appliances respondent used excessively. The incident fails to meet the requirements of a nuisance. It is not a persistent and continuing course of conduct that shows an unreasonable or unlawful use of the property. One alleged accidental fire does not constitute a nuisance. ( See Vukovic v Wilson, 245 AD2d 1, 1 [1st Dept 1997 mem] ["The allegation in petition, that the tenant or her subtenants plugged extension cords into electrical sockets, causing a fire on September 25, 1994, is insufficient to state a cause of action for nuisance. . . ."]; Pamac Realty v Bush, 101 Misc 2d 101, 102 [Hous Part, Civ Ct, NY County 1979]; cf. 107-109 E. 88th St. LLC v Nowillo, 13 Misc 3d 136[A], 2006 NY Slip Op 52176[U], *1, 2006 WL 33617, at *1, 2006 NY Misc LEXIS 3364, at *1 [App Term, 1st Dept, Nov. 21, 2006, per curiam] [allowing eviction because "tenant caused two separate fires in his apartment"].) Moreover, petitioner's allegation is incurably vague and thus unamendable. ( See e.g. Chinatown Apts. v Chu Cho Lam, 51 NY2d 786.) The court cannot ascertain what "excessive use of electrical appliances" means, but as likely as not it suggests that petitioner's wiring was at fault, not respondent's purported over-usage of unspecified appliances. The court's concern that the petitioner's wiring was to blame is founded upon the last sentence of incident one, in which petitioner concedes that an electrician she hired "suggested new wiring through the room."
The second incident alleges that respondent on some unknown date failed "to escort" to the building's "entrance door" an individual identified only as "your guest." According to petitioner, that failure "endanger[ed] other tenants in the shared portions of the premises." This allegation cannot stand. Petitioner cites no SRO law, lease provision, or building rule that requires tenants to escort their departing guests out the building; a one-time failure to escort a lawful guest is not a nuisance; and petitioner does not contend that the "guest" actually, as opposed to hypothetically, endangered anyone. To the court it appears as if petitioner seeks to evict respondent for not being polite enough to give a guest a formal and proper good-bye.
Several incidents are related; the court will consider them together. Part of the first incident and the entire twelfth incident allege that respondent made sexual advances toward electricians. The day after the November 2007 fire, petitioner claims, an electrician came to respondent's room, and, according to the termination notice, respondent "acted in an inappropriate and sexual manner towards him causing the electrician to leave the room after making the repair." Petitioner does not state what respondent did on that date, but it could not have been too scandalous: As petitioner concedes, the electrician left respondent's room only after he finished his work. The twelfth incident is more specific. Petitioner alleges that a "new electrician came to the room to check out the work," although the court does not know what work petitioner refers to, and respondent "passed by the electrician and on several occasions rubbed up against him in a sexually aggressive manner." Petitioner as to this incident does not contend that the electrician did not or could not complete his work. The thirteenth incident alleges that a "parade of men" visited respondent's apartment "on February 15, 2008 and thereafter" and that once, on February 24, 2008, respondent was "heard yelling and screaming in what appeared to be the throes of sexual passion." Having men over, making sexual advances to two men, and engaging once in noisy sexual relations in one's home do not, even if true, establish the required elements of a nuisance.
The fifth incident is dismissed as hopelessly vague and conclusory. Petitioner contends that respondent "regularly interferes in Landlord's private dealings with other tenants."
The sixth incident states that respondent supposedly once telephoned the police claiming that she "was not going to abide by the Rules and Regulations of the building and that she planned "to make trouble for the Landlord by contacting several City, State, and Government officials." These two aspects of incident six are dismissed in their entirety. Tenants may not be evicted for telling the police that at some future, incohate time they will not comply with unspecified rules. Nor may tenants be evicted for threatening to exercise their First Amendment right to contact government officials and agencies about plausibly legitimate matters.
The seventh incident is similarly dismissed. Petitioner claims that in February 2008, respondent told "another tenant to call landlord and ask if the electricity was shut off." The court notes that petitioner does not deny that the electricity was shut off, but even if the other tenant's complaint was faulty, a call to a landlord on this topic is not an evictable offense.
The seventeenth incident concerns attempts petitioner claims to have made by telephone and through professionals to encourage respondent to mediate her disputes with her. Petitioner claims that respondent refused to mediate, saying, "You're not worth my minutes of time." One may not lose one's home for not agreeing to mediation. Refusing to talk to one's landlord does not establish an unreasonable or unlawful use of the property or interfere with the conduct and safety of the landlord and other tenants in the building.
Under the Lenox Hill standard, the remaining incidents present valid causes of action for nuisance and are reasonably detailed to enable respondent to defend herself. Instead of succeeding on a motion to dismiss on the ground that the allegations in the termination notice lack specificity, respondent may move for disclosure or a bill of particulars to amplify the pleadings to learn more about the specifics of petitioner's allegations.
This is not to suggest that petitioner will prevail at trial on any or all of these remaining alleged incidents. Incident nine is one example about which this court might not be sanguine. In early February 2008, respondent's television stopped working. Petitioner's SRO is responsible for the television as part of the hotel services it provides. As the termination notice explains, respondent "demanded that the super, Manny, come up to the room, and only Manny." But because of the alleged November 2007 incident in which respondent purportedly "acted in an inappropriate and sexual manner towards him causing the electrician to leave the room after making the repair," the superintendent "refused to go to the room." When petitioner herself offered to come to respondent's room, respondent used a profanity toward her. That incident survives the motion to dismiss, but only because incidents 10, 11, and 15, which also survive the motion to dismiss, allege that respondent directed profanities toward petitioner on three other dates in February 2008.
Alleged incidents 3, 10, 14, and 16 involve a possibly persistent and continuing course of making false claims for lack of heat and hot water, including a time when respondent supposedly called the police to complain when respondent herself allegedly turned off a hot-water valve. Part of incident six alleges that respondent called the police and falsely accused petitioner of hitting a tenant. Incident eight involves respondent's possible interference with the safety of other tenants' and the petitioner and her employees by stealing dishes and utensils from a common kitchen in the subject SRO.
Because respondent's cross-motion is granted to the extent that several alleged incidents in the termination notice are now dismissed, respondent's first defense is meritorious. Thus, petitioner's motion to strike that defense is denied.
This proceeding is adjourned for trial to September 11, 2008.
This opinion is the court's decision and order.