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Brooklyn Home For Aged People Housing Development Fund Co v. Derrick Selby

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


July 7, 2011

BROOKLYN HOME FOR AGED PEOPLE HOUSING DEVELOPMENT FUND CO.,
RESPONDENT,
v.
DERRICK SELBY, APPELLANT, -AND- "JOHN DOE" AND "JANE DOE,"
UNDERTENANTS.

Appeal from an order of the Civil Court of the City of New York, Kings County (Anthony J. Fiorella, Jr., J.), entered July 1, 2010. The order denied tenant's motion to dismiss the petition in a holdover summary proceeding.

Brooklyn Home for Aged People Hous. Dev. Fund Co. v Selby

Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 7, 2011

PRESENT: STEINHARDT, J.P., GOLIA and RIOS, JJ

ORDERED that the order is affirmed, without costs.

In this holdover summary proceeding, landlord seeks to evict tenant from a federally subsidized housing complex on the ground that he violated his lease agreement when, among other things, he allegedly masturbated in front of landlord's employee and threatened a security officer. Tenant moved to dismiss the petition on the ground that landlord's service of the notice of termination was untimely pursuant to Matter of ATM One v Landaverde (2 NY3d 472 [2004]). In addition, tenant argued that the notice failed to provide him with sufficient factual information to prepare an adequate defense. The Civil Court denied tenant's motion, finding that landlord had timely served tenant with the notice of termination and that the notice was factually sufficient. Tenant appeals.

In his brief on appeal, tenant has abandoned his argument that landlord did not timely serve him with the notice of termination because it failed to add five days to the 30-day notice period after it served the notice of termination by mail. In any event, tenant's contention is without merit because the rule requiring the addition of five days when a 10-day notice to cure is served by mail is not applicable to a 30-day notice (Matter of ATM One v Landaverde, 2 NY3d 472; 85th Columbus Corp. v Cooperman, 45 AD3d 358 [2007]; 21 W. 58th St. Corp. v Foster, 44 AD3d 410 [2007]; Skyview Holdings, LLC v Cunningham, 13 Misc 3d 102, 104 [App Term, 1st Dept 2006]).

The "test for determining the sufficiency of a termination notice is whether it is reasonable . . . in view of [the] attendant circumstances'" (323 3rd St. LLC v Ortiz, 13 Misc 3d 141[A], 2006 NY Slip Op 52268[U], *2 [App Term, 2d & 11th Jud Dists 2006] [internal citations omitted]). A notice of termination must "adequately appris[e the] tenant of the grounds upon which the termination was based" (id.; see Peng v Van Zandt, 14 Misc 3d 138[A], 2007 NY Slip Op 50272[U] [App Term, 1st Dept 2007]).

In this case, the notice alleges that tenant violated paragraph 8 of his lease agreement when he masturbated in front of landlord's employee and then caused a public disturbance when he screamed and threatened the employee and others present on the premises with physical harm. It further alleged that, during another incident, tenant threatened a security officer at the complex that he was going to get his gun. The notice adequately apprised tenant of the grounds upon which landlord sought to terminate his tenancy, and its fact-specific allegations, if proven, are sufficient to establish that tenant's "criminal activity . . . threaten[ed] the health, safety, or right to peaceful enjoyment of the premises by other residents" in contravention of paragraph 8 of the lease. Tenant's argument that the alleged conduct was directed at landlord's employees, and not other residents, does not undermine the sufficiency of the notice because the conduct infringed upon the right of all residents to peaceful enjoyment of the premises (323 3rd St. v Ortiz, 13 Misc 3d 141[A], 2006 NY Slip Op 52268[U] at *2). Therefore, the Civil Court properly denied tenant's motion to dismiss.

Steinhardt, J.P., Golia and Rios, JJ., concur.

Decision Date: July 07, 2011

20110707

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