Opinion
L & T 020295/2015
08-14-2015
Mid Bronx HDFC, Petitioner-Landlord, v. Juana Paulino, Respondent-Tenant, - and - KELVIN PEGUERO, KENLUIS PEGUERO, KAREN DIAZ and JOHN DOE, Respondents-Undertenants.
Upon the foregoing papers and for the following reasons, the motion by Respondent-Tenant Juana Paulino ("Tenant") for an order, inter alia, dismissing the instant nuisance holdover proceeding and permitting the filing of a late Answer, is denied in part, and granted in part, and the matter is hereby adjourned for further proceedings.
For at least 17 years, Tenant has resided in the subject Premises, known as 1360 Ogden Avenue, Apt. 3E, in the Bronx, New York, which are owned and managed by Petitioner-Landlord Mid Bronx HDFC ("Landlord"). Tenant currently resides there with her three adult children, Undertenants Karen Diaz, Kenluis Diaz and Kevin Peguero, as members of her household. Her long-term tenancy has not been without incident, however. It is undisputed that Landlord had previously instituted a holdover proceeding against her in 2012, which culminated in the parties' execution of a Stipulation of Settlement so-ordered by the Bronx County Housing Court (Doherty, J.), dated November 28, 2012, wherein Tenant and her household members agreed to "refrain from engaging in the type of nuisance/objectionable conduct enumerated in the [prior] Predicate Notice" for a probationary period of one year. It appears that the probationary period concluded without incident.
Nonetheless, on March 11, 2015, Landlord served upon Tenant another Ten-Day Notice to Terminate her tenancy alleging that she and her Undertenants had committed or permitted a nuisance in the building by engaging "in a persistent and continuing course of conduct evidencing an unwarrantable and unreasonable use of the property to the annoyance, inconvenience, discomfort and damage * * * intended to harass others," and asking them to quit and surrender the Premises on or before March 26, 2015. Specifically, Landlord alleged that:
On or about January 21, 2015, the superintendent of the subject premises contacted management with regard to a member of your household, namely, Kevin Peguero, who verbally and physically threatened various employees and representatives of management with regard to a motorcycle which was chained in the lobby area of the building. In an attempt to defuse the situation, Management arrived at the subject Premises. Knocking at the apartment door (Apt. 3E) for approximately five minutes, management observed fighting in front of the building and Kevin Peguero stating to the Superintendent and Mr. Peguero's stepfather[:] "You don't know what you just did," and began calling someone on his cellphone. Within five minutes a large crowd of individuals appeared which led to gunshots erupting in front of the subject Premises.
This menacing behavior resulted in the arrest of Kevin Peguero (Arrest No. B15603983) due to his threat of[:] "If you call the police or talk to the police, I'm going to shoot you."
Due to the menacing and threatening behavior exhibited by Kevin Peguero, management has had to relocate and reassign several employees who are fearful for their safety.
This conduct has disturbed the comfort and quiet enjoyment of the other tenants, shareholders, occupants and employees of the building and has caused them to feel threatened and to fear for their safety.
You have been repeatedly warned that should this objectionable conduct on your part continue, the Landlord would seek to terminate your tenancy, yet the nuisance conduct has been repeated and continues.
The Termination Notice contained as an attachment the Criminal Complaint detailing the charges against Mr. Peguero and the disposition of the same.
As Tenant did not vacate or surrender the Premises on the prescribed date, Landlord commenced the instant nuisance holdover proceeding against Tenant and the Undertenants, by Notice of Petition and Petition filed March 31, 2015, to recover possession of the Premises, fair Use & Occupancy, the issuance of a Warrant of Eviction and reasonable costs and disbursements pursuant to RPAPL 711(1), alleging that Tenant and Undertenants have created a nuisance and violated the Lease Agreement by engaging in a course of conduct that endangered, annoyed, and inconvenienced management, tenants and other occupants of the building. The Petition further acknowledges that the Premises are subject to the Rent Stabilization Law of 1969, have been duly registered with the NYS Division of Housing and Community Renewal, and that the rent charged does not exceed the registered or lawful stabilized rent. No Answer has been filed by either Tenants or Undertenants.
Instead, by Notice of Motion returnable June 25, 2015, Tenant moves for an order dismissing the proceeding pursuant to CPLR 3211(a)(7), CPLR 3013, RPAPL 741(4) and Rent Stabilization Code (9 NYCRR) § 2524.2, arguing that the Termination Notice and Petition fail to sufficiently state a cause of action for nuisance; or in the alternative, for an order granting Tenant leave to interpose a late Answer pursuant to CPLR 2004 and 22 NYCRR § 208.7. In support of their Motion, Tenant and Undertenants argue that the single incident depicted on the Termination Notice is not only devoid of the required particularized factual allegations to permit Tenant to mount a meaningful defense against the Proceeding, but it is "vague in scope and content" and legally insufficient to sustain a nuisance claim, since it amounts to "at worst, a verbal altercation between [Landlord]'s agents and a member of [Tenant]'s family, her son, Kevin Peguero." Indeed, Tenant's counsel goes so far as to cavalierly characterize the incident as "the sort of idiotic, churlish banter that occurs on a regular basis on any given mode of public transportation in this City."
In opposition, Landlord counters that its Termination Notice and Petition are legally sufficient to withstand a dismissal motion because they amply particularize the allegations against Tenant and Undertenants to allow them to frame a legal defense. Landlord alleges that Tenant and Peguero had previously and continuously engaged in similar menacing and aggressive behavior towards its employees, and that Peguero had "commenced a campaign of aggression on January 21, 2015 — which included gunshots and death threats — and which resulted in his arrest on criminal charges." According to Landlord, that the Notice and Petition do not list or particularize every single misconduct or incident between Peguero and its employees, should not vitiate the commencement of this Proceeding. This Court agrees in part.
Rent Stabilization Code § 2524.2(b) mandates that: "[e]very notice to a tenant to vacate or surrender possession of a housing accommodation shall state the [statutory] 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 the tenant is required to surrender possession" (see Giancola v Middleton, 73 AD3d 1056, 1057 [2010]; New York City Rent and Eviction Regulations [9 NYCRR] § 2204.3). The Termination Notice must contain such facts in order to afford tenants knowledge of the factual allegations to be used against them, and the means to defend themselves (see Domen Holding Co. v Aronovich, 1 NY3d 117, 125 [2003]). The "plain language" of the notice provision has the "salutary purpose to discourage baseless eviction claims founded upon speculation, rather than concrete facts" (London Terrace Gardens, LP v Heller, 40 Misc 3d 135[A], 2009 NY Slip Op 52858[U] [AT 1st 2009]). Similarly, RPAPL 741, which governs the contents of a petition, provides that a petition must: (1) "state the interest of the petitioner in the premises from which removal is sought;" (2) the respondent's interest in the same; (3) "describe the premises;" (4) state the facts upon which the proceeding is based (see Giannini v Stuart, 6 AD2d 418, 420 [1958]); and (5) what relief is sought (see MSG Pomp Corp. v Doe, 185 AD2d 798, 800 [1992]).
One ground for eviction is where "the tenant is committing or permitting a nuisance in such housing accommodations or the building containing such housing accommodation" (Rent Stabilization Code § 2524.3[b]; 9 NYCRR 2204.2[a][2]). "To constitute a nuisance, the use of property must interfere with a person's interest in the use and enjoyment of land, * * * [which] encompasses the pleasure and comfort derived from the occupancy of land and the freedom from annoyance" (Domen Holding Co. v Aronovich, 1 NY3d at 123-124 [internal citations omitted]). Generally, "the key to the definition is a pattern of continuity or recurrence of objectionable conduct" (Frank v Park Summit Realty Corp., 175 AD2d 33, 34 [1991], mod on other grounds 79 NY2d 789 [1991]), but "there is no strict quantitative test as to how many incidents warrants a claim of nuisance," even a single incident may be sufficient in light of its egregiousness and seriousness ( 405 E. 56th St., LLC v Morano, 19 Misc 3d 62, 64 [Davis, J., dissenting, AT 1st 2008]; see 160 W. 118th St. Corp. v Gray, 7 Misc 3d 1016[A], 2004 NY Slip Op 51881[U] [NY Civ Ct 2004]). Some examples of nuisances include: noxious emissions from a building owner's smoke stacks onto another's property ( see Copart Indus. v Consolidated Edison Co. of NY, 41 NY2d 564, 568 [1977]), secondhand smoke seeping into another tenant's residence ( see Ewen v Maccherone, 32 Misc 3d 12, 15-16 [AT 1st 2011]), verbally abusive confrontations with other tenants and threatening with aggressive dogs ( see 405 E. 56th St., LLC v Morano, 19 Misc 3d at 63), and intolerant and menacing behavior by a tenant or undertenant towards employees and other tenants in the building ( see Domen Holding Co. v Aronovich, 1 NY3d at 125).
Applying these legal principles to the matter at bar, Tenant has failed to demonstrate that the Notice of Termination or Petition did not provide sufficient facts to permit her to discern the particular allegations against her or mount a legal defense. To the contrary, the Notice of Termination specifies that nuisance is the ground upon which Landlord is relying, sets forth facts necessary to establish that ground, including specific examples of the objectionable and menacing conduct of one of the occupants of the Premises, Mr. Peguero, and designates the date by which the Premises were to be vacated (see Rent Stabilization Code § 2524.2[a], [b]; § 2524.3[b]). Particularly, the Notice provides fact-specific examples of Peguero's hostile conduct, describes his menacing attitude toward Landlord's personnel, and details his use of threats of violence against his stepfather and the Superintendent. It includes names, dates, a description of the misconduct and police complaint numbers. Contrary to Tenant's arguments that only one incident occurred, the Notice sufficiently alleges that Peguero's behavior was not limited to that instance and generally provides that his threatening conduct toward Landlord's employees and others has been repeated and continues, despite Tenant having "been repeatedly warned that should this objectionable conduct on your part continue," her tenancy would be terminated.
Whether the seriousness and egregiousness of the detailed incident suffices (see 160 W. 118th St. Corp. v Gray, 7 Misc 3d 1016[A] [single gunshot to tenant's son in the building may be nuisance], but see Benroal Realty Assoc. v Newbern, 7 Misc 3d 759 [Nassau Dist Ct 2005] [single physical assault on landlord's employee insufficient for nuisance]), or whether Peguero's presence at the Premises had resulted in a recurring or continuing pattern of objectionable conduct threatening the comfort and safety of others in the building to constitute a nuisance appear to be issues of fact better left to the trier of facts (see McGoldrick v DeCruz, 195 Misc 2d 414, 415 [AT 1st 2003], but see Hirsch v Stewart, 63 AD3d 74 [2009]). Tenant finds "laughable" Landlord's failure to identify the owner of the motorcycle at issue, the identity of the employees threatened by Peguero, who were thereafter relocated, and the names of individuals who appeared at the Premises after Peguero's call, etc. Despite's Tenant's protestations, these further evidentiary matters are more appropriately explored in discovery or at trial (see McGoldrick v DeCruz, 195 Misc 2d at 415).
In accordance with the foregoing, Tenant's motion to dismiss the Petition for failure to sufficiently state a cause of action is denied, leave to serve a late Answer is granted to be completed within ten days, and the matter is hereby adjourned to August 28, 2015 at 9:30 a.m. for all purposes. The foregoing constitutes the decision and order of the Court.
E N T E R:
Dated: August 14, 2015
Bronx, New YorkJ.H.C.
To:Thomas S. Fleishell & Associates, P.C.
561 Seventh Avenue, 19th Floor
New York, New York 10018
Graham Dumas, Esq.
The Bronx Defenders
360 East 161st Street
Bronx, New York 10451