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Nuisance Holdover Proceeding Is Dismissed; Predicate Notices Were Legally Insufficient

Posted by nyhawk on June 06, 2001 at 22:49:35:

FOSTER ARMS APTS. CORP. v. SCHREIBER

New York Law Journal
June 6, 2001

CIVIL COURT

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Housing Part g

Judge Chin

Petitioner commenced this nuisance holdover proceeding to recover possession of a cooperative apartment #5E located at 1825 Foster Avenue, Brooklyn, New York ("premises"). Respondent moves to dismiss the petition pursuant to CPLR 3211 on the grounds that (a) the notice to cure and notice of termination are legally insufficient.

Respondent argues that dismissal is required because the notice to quit and notice of termination upon which this petition is predicated fail to set forth sufficient facts to establish the legal claim that respondent is permitting or committing a nuisance at the premises. Landlord bases its claim upon the allegations as follows in both the notice to care and notice of termination:

"In violation of Paragraph(s) 18(b) of your Propritary Lease and House Rule #5, you are permitting the occupant(s) of the apartment to cause unreasonable and disturbing noises to emanate from the apartment (including regular persistent banging on the ceiling as well as repeated and unnecessary flushing of the toilet many times in a row) thereby interfering with the rights of other residents and unreasonably annoying other residents. This constitutes objectionable conduct."

No other facts are alleged in the notice to cure or notice of termination in support of petitioner's claim.

A notice to cure and/or notice of termination directed to a tenant must state not only the ground for removal, but the facts necessary to establish the existence of such ground. The notice must be specific and unambiguous. It must advise the tenant of precisely what condition is being complained of and how it violates the tenancy. Chinatown v. Chu Cho Lam, 433 N.Y.S.2d 86 (1980). The petition which incorporates a notice to cure and/or notice of termination by reference must state the facts upon which the special proceeding is based. RPAPL 741(4). "A notice of termination which merely recites the legal ground for the eviction, but fails to set forth any of the facts upon which the ensuing proceeding would be based is insufficient." Kaycee W. 113th Street Corp. v. Diakoff, 554 NYS2d 216 (1st Dept 1990).

Although petitioner articulates the legal standard to establish a nuisance, the facts set forth in the notice to cure and notice of termination are not sufficient to establish the ground for the holdover petition. It merely recites bald conclusions and is devoid of any specific supporting facts. Particularly, there are no specific incidences claimed with regards to the "regular persistent banging on the ceiling" or the "repeated and unnecessary flushing of the toilet". There are no specific times or dates indicated at all. These types of bare allegations do not establish the grounds necessary to maintain a nuisance holdover proceeding.

The court finds that respondent can not be expected to prepare a defense against the vague and ambiguous allegations as set forth in the predicate notices herein. Accordingly, the petition upon which the insufficient notice to cure and notice of termation is based is dismissed. As such, the court need not address any of the additional issues raised in respondent's motion.

This is the decision and order of the Court.

Date Received: June 05, 2001

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