Opinion
SP 000573/08.
Decided December 22, 2008.
Rosenberg, Calica Birney, LLP, Attorneys for Petitioner, Garden City, New York.
William D. Friedman, Esq., Attorney for Respondent, New York.
On October 8, 2008, the parties submitted a stipulated statement of facts as well as memoranda of law outlining the legal issues in this action.
FACTS
The following facts set forth in the affidavit of facts of Paul Spivack, officer of petitioner, dated September 23, 2008, have been stipulated to and agreed upon by the parties:
Respondent has been a tenant at 19 Willow Gardens, Apt. B1, Port Washington, New York 11050 (the "Apartment") since November 1, 1999 pursuant to the written lease between the parties as extended (a copy of the lease and most recent extension are annexed hereto as Exhibit 1 to the Joint Appendix of Exhibits). Upon information and belief the Respondent Virgil Svobodny died after this action was commenced, leaving Dolly Svobodny as the only remaining named tenant (See Exhibit 4 to the Joint Appendix of Exhibits). Responding to complaints received and notification from our Superintendent that unpleasant odors and an excessive amount of flies were present in the common areas and hallways outside of the Respondent's apartment, in early January 2008, my brother Steven and I went to inspect the apartment to see where the odors and flies were emanating from. Upon entering into the apartment we discovered that it was strewn with garbage of various types including rotting food with nauseating and unbearable odors (copies of the photographs taken by us on that day are annexed hereto as Exhibit 6 to the Joint Appendix of Exhibits). Through the Respondent's misuse we subsequently had to replace both the refrigerator and the stove in the apartment which were filthy, unuseable and irreparable. In addition, the Respondent's total disregard for normal standards of hygiene and safety have caused the premises to be damaged in an amount which cannot yet be fully determined but which we anticipate to be in excess of several thousand dollars. Among other things, the bathroom must be refitted with new tiling at a cost of approximately $2,500. New sinks, toilets and vanities must be installed at a cost of at least $550 plus labor. New shower doors must be fitted at a cost of around $150 plus labor. The sheetrock will have to be ripped out and replaced at a cost of at least $500 plus labor. Thus, the costs to repair the damage to the bathroom alone will be at a minimum, not less than $4,500.00 and the entire apartment will have to be repainted. In addition, this kitchen has similarly been destroyed and based on our inspection, in addition to the stove and refrigerator which we have already replaced at our expense, the cabinetry, floor and sink are all filthy, gouged and permanently stained and damaged requiring repairs that at a minimum, will cost not less than $4,500.00. The Respondent's lease, at Article 16 entitled "Tenants Default" provides at subsection B thereof that: "If (1) Tenant's application for the Apartment contains any material misstatement of fact, (2) Tenant maintains a nuisance, or (3) Tenant vacates the Apartment, Landlord may cancel this lease. Cancellation shall be by cancellation notice as stated in 16A." The pertinent section of 16A states in part that: "The cancellation notice will state the date the Term will end which may be no less than ten days after the date of the notice. On the cancellation date in the notice the Term of this Lease shall end." In view of the dangerous and unhealthy condition of the apartment, as well as the damage caused thereto, by notice dated January 11, 2008 duly served upon the Respondent in accordance with the lease as set forth in the petition and notice of petition (copies of which are annexed hereto as Exhibit C to the Joint Appendix of Exhibits) the Respondent's lease was terminated in accordance with Article 16B effective as of January 22, 2008 and this action ensued. At present since the lease was terminated fair use and occupancy due from the Respondent has accrued through the month of September in the amount of $12,973.04.
ANALYSIS
In its memorandum, petitioner's attorney contends that the respondent created a nuisance through the nauseating and unbearable odors emanating from the subject premises, the piles of garbage and other debris that created a hazardous condition and that respondent's conduct has caused thousands of dollars worth of damages to the subject premises, which is a nuisance. The respondent's attorney counters petitioner's contentions by arguing that the notice to terminate the subject premises was fatally defective because it made no reference to any provision of the lease and "has no names, dates and description concerning the objectionable conduct or names of tenants adversely impacted by the alleged conduct of the tenant." Further, respondent's attorney contends that the petitioner has failed to meet its burden of proof to evict the respondent for nuisance.
"Termination notices must be clear, unambiguous and unequivocal in order to serve as the catalyst which terminates a leasehold' (citations omitted)" ( SAAB Enterprises, Inc. v. Bell, 198 AD2d 342, 603 NYS2d 879 [2nd Dept 1993]; Ellivkroy Realty Corp. v. HDP86 Sponsor Corp., 162 AD2d 238, 556 NYS2d 339 [1st Dept 1990]; City of Buffalo Urban Renewal Agency v. Lane Bryant Queens, Inc., 90 AD2d 976, 456 NYS2d 568 [4th Dept 1982]. Further, a notice to terminate must cite to a specific prohibition in the lease ( see Chinatown Apartments, Inc. v. Chu Cho Lam, 51 NY2d 786, 433 NYS2d 86). Moreover, the notice to terminate based upon nuisance must provide fact specific examples of the misconduct, names, dates and times ( see Domen Holding Co. V. Aranovich, 1 NY3d 117, 769 NYS2d 785). A copy of the notice to terminate dated January 11, 2008 is attached as Exhibit 2 to the Joint Appendix of Exhibits, and reads as follows:
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
AND FIRST CLASS MAIL
Dolly Svobodny
Virgil Svobodny
Apt. 19B-1 Wildwood Gardens
Port Washington, New York 11050
Re:Lease dated October 1, 1999 (Lease) between Spivak Realty Co., Inc. d/b/a S H Realty Co. (Landlord) and Dolly and Virgil Svobodny (Tenant) for Apt. 19B-1 at Wildwood Gardens, Port Washington, New York (Premises)
Dear Tenant:
Please be advised that you are presently in default of your obligations as Tenant under the above-referenced Lease in that, among other things, you have failed to take good care of the apartment and all equipment and fixtures therein, you have allowed garbage waste and other matter to accumulate in and about the apartment causing a dangerous, unsafe and unsanitary condition in violation of applicable laws and governmental regulations, you have interfered with the tenancies and rights of other tenants by allowing annoying and objectionable smells and odors to emanate from your apartment, and you have failed to comply with the garbage disposal rules and dispose of all waste in a proper manner, all of which have caused and created a nuisance and dangerous and unsanitary condition in the building.
By reason of all of the foregoing and pursuant to your Lease, including but not limited to Article 16B thereof, your Lease, and the term thereof are hereby cancelled and terminated effective as of January 22, 2008 which date is at least ten (10) days from the date hereof and you are required, on or before such date, to leave the apartment and give the Landlord the keys and upon your failure to do so the Landlord shall commence proceedings to recover possession thereof against you yet you shall continue to remain liable as provided for in your Lease.
Please be guided accordingly.
SPIVAK REALTY CO., INC.
d/b/a S H REALTY CO.
By: /s/ Paul Spivack
Said termination notice refers to Article 16B of the subject lease which states:
16. Tenant's defaultA. Landlord must give Tenant written notice of default stating the type of default. The following are defaults and must be cured by Tenant within the time stated:
(1) Failure to pay rent or added rent on time, 5 days.
(2) Failure to move into the Apartment within 15 days after the beginning date of the Term, 10 days.
(3) Issuance of a court order under which the Apartment may be taken by another party, 10 days.
(4) Improper conduct by Tenant annoying other tenants, 10 days.
(5) Failure to comply with any other term or Rule in the Lease, 10 days.
If Tenant fails to cure the default in the time stated, or violates Section 16B, Landlord may cancel the Lease by giving Tenant a cancellation notice. The cancellation notice will state the date the Term will end which may be no less than 10 days after the date of the notice. On the cancellation date in the notice the Term of this Lease shall end. Tenant must leave the Apartment and give Landlord the keys on or before the cancellation date. Tenant continues to be responsible as stated in this Lease. If the default can not be cured in the time stated. Tenant must begin to cure within that time and continue diligently until cured.
B. If (1) the Tenant's application for the Apartment contains any material misstatement of fact, (2) Tenant maintains a nuisance, or (3) Tenant vacates the Apartment, Landlord may cancel this Lease. Cancellation shall be by cancellation notice as stated in Section 16A.
Here, the notice to terminate fails to provide dates, times, names of tenants affected by the alleged nuisance and fact specific examples of the nuisance. In other words, the notice to terminate cannot serve as a proper notice to the respondent to advise her of the conduct over an almost nine year lease period which caused an alleged nuisance and permit her to frame a defense to same. Since a proper notice to terminate or predicate notice is a prerequisite to maintenance of a summary holdover proceeding, the case at bar evidences a defective notice to terminate and thus a defective proceeding ( see RPAPL § 741; Carriage Court Inn, Inc. V. Rains, 138 Misc 2d 444, 524 NYS2d 647 [Civ Ct, New York County 1988]; Katz Park Avenue Corp v. Olden, 158 Misc 2d 541, 601 NYS2d 757 [Civ Ct, New York County 1993]). "Defects in the predicate notice are not subject to cure by amendment and require dismissal of the proceeding (citation omitted)" ( See Eg., St. James Court, LLC v. Booker, 176 Misc 2d 693, 673 NYS2d 821, 823 [Civ Ct, Kings County 1998]; Fazal Realty Corp. v. Paz, 151 Misc 2d 396, 573 NYS2d 399 [Civ Ct, New York County 1991]). Therefore, the herein proceeding cannot be maintained and the Notice of Petition and Petition is dismissed.
The remainder of petitioner's contentions about establishing a nuisance and damages for same are rendered moot and academic by the above insufficient notice to terminate and dismissal of the summary holdover proceeding.