Opinion
95630/05.
Decided January 24, 2006.
PENNISI, DANIELS, NORELLLI, LLP, NY, Attorney for Petitioner.
LAW OFFICE OF ROBERT E. LEVY, ESQ., New York, NY, Attorney for Respondents.
This holdover proceeding is predicated on objectionable conduct by the Respondent's son. Petitioner served a Seven-Day Notice to Terminate the tenancy pursuant to Rent Stabilization Code (hereinafter "RSC") on the basis of nuisance. In the notice, Petitioner outlines the grounds upon which the termination is based. The dates of the alleged conduct began July 4, 1999 and continued on various dates and years with the last date being August 21, 2005. Respondent, by motion dated November 28, 2005, moved pursuant to CPLR § 3211 to dismiss the petition on the grounds of insufficiency of the pleadings and the statute of limitations. Petitioner opposed the motion.
Respondent began her tenancy pursuant to a Mitchell-Lama lease. As of August 1, 2005, the building was converted to rent stabilization and Respondent became a rent stabilized tenant with a new lease. See Lease dated May 5, 2005 attached to Respondent's moving papers as Exhibit # 1.
Respondent argues that since the subject premises was not covered by the RSC at the time of the alleged conduct between 1999 and 2003, the notice is defective. In addition, the allegations may be time barred pursuant to CPLR § 213. There is only objectionable conduct, August 21, 2005, that occurred after the new rent stabilized lease became effective. On this premise, Respondent argues that a single objectionable conduct is insufficient to show nuisance.
Petitioner opposes on the grounds that the objectionable conduct is continuous and, therefore, the proceeding is properly commenced on the basis of nuisance.
Even though the parties remain the same, the terms of the tenancy changed after the conversion. The Mitchell-Lama agreement does parallel the RSC in most respects. However, they follow two different statutory constructions requiring different procedure for termination. Compare 9 NYCRR § 1727-5.3; RSC § 2524.3; Scherer, Residential Landlord and Tenant in New York, Chapter 6. More important, the rent stabilized lease, by reference, specifically states that the rights and obligations of the parties are written into the lease and any prior agreement is not enforceable. See Preamble of Lease dated May 5, 2005. By the very terms of the lease, all prior agreements between the parties are excluded which precludes, by reference, the Mitchell-Lama agreement. This proceeding was commenced pursuant to the RSC. Therefore, the objectionable conduct on August 21, 2005 would be applicable to the RSC. But, a single incident does not support a finding of nuisance. ( Domen Holding Co. v. Aranovich, 302 AD2d 132 (1st Dept 2003); appeal dismissed, 99 NY2d 649 (2003), and aff'd as modified, 1 NY3d 117 (2003); James v. New York City Housing Authority, 186 AD2d 498, [1st Dept, 1992]; compare Frank v. Park Summit Realty Corp., 175 AD2d 33 (1st Dept), affd, 79 NY2d 789.)
Termination of the tenancy based on nuisance could be maintained if Petitioner shows that the objectionable conduct is recurring, frequent, continuous or extremely dangerous. Scherer, Residential Landlord and Tenant in New York, § 8:91. The termination notice lists the dates as early as July 1999 and late as August 2005. The time period of the objectionable conduct in 1999 occurred monthly. The next two incidents were in August and November 2001. One incident occurred in September 2003 and the last was August 2005. It appears that the objectionable conduct between 2001 and 2005 occurred every two years except for 1999. A two-year time period between incidents cannot be deemed recurring, frequent and continuous. Petitioner would have to show that the objectionable conduct occurred repeatedly without interruption or extended break between incidents. A two-year time period does not constitute repeated uninterrupted break. See, Domen Holding Co. v. Aranovich, 302 AD2d 132, supra.
Assuming that the Mitchell-Lama agreement is incorporated into the RSC, which this Court does not find, the statutory time period to commence an action for violation under of the Mitchell-Lama agreement or the rent stabilization lease is six years. CPLR § 213. Therefore, if Petitioner is referring to the 1999 incidents to constitute continuous, those incidents are time barred since they occurred more than six years ago. There was no explanation given for the delay in commencing this proceeding if Petitioner deemed that the objectionable conduct was recurring, frequent, continuous or extremely dangerous.
The lengthy time period between incidents coupled with the failure of Petitioner to commence a timely proceeding is deemed to be ignoring a potential breach of the lease and waiver of the right to evict on substantially stale incidents.
Based on the above, Respondent's motion pursuant to CPLR § 3211 and § 213 is granted and this case is dismissed The Court need not reach the remaining issue of specificity of the facts in the Notice of Termination.
This is the decision and order of the Court.