Opinion
No. LT–006992–11.
2012-08-1
WRG Acquisition XIII, LLC, Petitioner(s) v. Robert A. Dalton, “JOHN DOE” and “JANE DOE”, Respondent(s).
Law Offices of David W. Graber, Great Neck, NY, Attorney for Petitioner. Ezratty, Ezratty & Levine, Mineola, NY, Attorneys for Respondent.
Law Offices of David W. Graber, Great Neck, NY, Attorney for Petitioner. Ezratty, Ezratty & Levine, Mineola, NY, Attorneys for Respondent.
SCOTT FAIRGRIEVE, J.
The Respondent, Robert A. Dalton, moves for the case to be dismissed due to the Court's lack of jurisdiction. The Petitioner, WRG Acquisition XIII, L.L.C, opposed the motion. The Respondent filed a reply.
In this holdover proceeding, the Petitioner claims that the Respondent's lease should be terminated due to a breach of the Proprietary Lease. Petitioner alleges that the Respondent breached the lease agreement by harboring birds in his unit by violating the Emergency Tenant Protection Act and the Rent Stabilization Laws of the State of New York. Petitioner alleges that Respondent violated the Emergency Tenant Protection Act and the Rent Stabilization Laws of the State of New York as a result of his having created a nuisance in his apartment and by allowing the nuisance to continue to exist. Petitioner alleges the Respondent created a nuisance by allowing foul odors to continuously emanate from his apartment into the hallway and other apartments, and by doing so, Respondent is preventing shareholders who reside in other units of the building from having a safe and habitable environment in which to live.
Petitioner served Respondent with a Notice to Cure on September 19, 2011 followed by a Notice to Terminate dated November 1, 2011.
Respondent contends that both the Notice to Cure and the Notice to Terminate are not specific enough and are therefore fatally defective. Respondent contends that Petitioner's allegation that Respondent allowed foul odors to emanate from his apartment into the hallway and other apartments is not sufficiently specific to allow Respondent to mount a defense. Further, Respondent contends that the Petitioner did not specify in the Notice to Terminate what type of odor was emanating from Respondent's apartment.
Petitioner contends that the recitation of specific dates, times and names is not a jurisdictional prerequisite, but more properly the subject of a Bill of Particulars. Petitioner also contends that the particularization of the type of odor is better suited for a bill of particulars rather than a Notice a Terminate.
Although Petitioner's claim may be true that the recitation of specific dates, times and names is more properly the subject of a Bill of Particulars, the issue isn't whether the information could be conveyed in an alternate manner, but whether the information conveyed in the predicate notices are sufficient enough to allow the Respondent to mount a defense. The appropriate standard for assessment of the adequacy of notice is one of reasonableness in view of all attendant circumstances. 297 Realty Co. v. Babel, 19 Misc.3d 1145A, 867 N.Y.S.2d 21. The default must be stated with such particularity that the tenant will be able to understand the specific claim, and present a defense. Id. The information conveyed in Petitioner's Notice to Terminate was not specific enough to enable the Respondent to understand the allegations brought against him. To allow Respondent, an elderly gentlemen who has been residing at the subject premises for over 35 years, to be evicted from his home without ever being given the opportunity to understand the allegations brought against them and mount a proper defense would be inappropriate. Therefore, Petitioner's Notice to Terminate is defective and the Court does not have jurisdiction over this matter.
So Ordered: