Civil Court of the City of New York, New York County
BELKIN BURDEN WENIG & GOLDMAN LLP Attorney for Petitioner
SOKOLSKI & ZEKARIA, PC Attorneys for Respondent
DECISION & ORDER
Hon. Sabrina B. Kraus, Judge
This summary holdover proceeding was commenced by ST OWNER LP (Petitioner) seeking to recover possession of 283 AVENUE C, APT 8D, NEW YORK, NY 10009 (Subject Premises) based on allegations that MERRICK BURSUK and DONNA DICKMAN-BURSUK (Collectively "Respondents") the rent-stabilized tenants of record, had created a nuisance by their conduct.
Petitioner issued a ten day notice of termination dated January 11, 2013. The notice asserted that on December 22, 2012 Merrick Bursuk (Merrick) was walking a dog that bit another tenant and Merrick subsequently punched said tenant in the head.
The petition is dated March 28, 2013, and on April 11, 2013 Merrick appeared pro se and filed a written answer. Merrick's answer asserted that the tenant had lied about being bitten by the dog and punched, and that the proceeding had been brought by Petitioner in retaliation for Respondent's refusal to sign a pet rider that had not been approved by DHCR.
The proceeding was initially returnable on April 16, 2013, and after a brief conference with the court the proceeding was adjourned to May 30, 2013. On May 16, 2013, counsel appeared for Respondents and filed a notice of appearance, amended answer and counterclaim.
The amended answer asserted that the allegations in the underlying notice of termination were false and that even if they were deemed to be correct, they failed to set forth a cause of action for nuisance, in that the allegations were regarding a single incident and did not describe a continuous course of conduct. The amended answer also asserted retaliatory eviction.
On May 30, 2013, the court set a trial date for August 13, 2013, and directed that any motions be filed by June 30, 2013. On July 11, 2013, Respondents moved for dismissal of this proceeding, based on their allegation that the pleadings fail to state a cause of action for nuisance and that the notice of termination is defective. On said date the court heard argument and reserved decision on the motion.
Petitioner argues that Respondent's motion should be denied as procedurally improper because Respondent moves pursuant to CPLR § 3211 after service of a responsive pleading. Petitioner's argument is mistaken, a motion pursuant to CPLR 3211(a)(7) may ...