Civil Court of the City of New York, New York County
November 25, 2013
145 East 49TH Street, LLC, Petitioners-Landlord,
Joyce Mills 145 East 49th Street, Apt 8B New York, New York 10017, Respondent-Tenant, SUSAN ADAMS "JOHN DOE" and/or "JANE DOE" Respondents-Undertenants.
JORDAN M. HYMAN, ESQ, Attorney for Petitioner
KARLSSON & NG, PC, Attorneys for Respondent, By: David Ng, Esq.
SABRINA B. KRAUS J.
This summary holdover proceeding was commenced by 145 EAST 49TH STREET, LLC (Petitioner) against JOYCE MILLS (Respondent), the rent control tenant of record, seeking to recover possession of 145 East 49th Street, Apt 8B, New York, New York 10017 (Subject Premises), based on the allegation that Respondent has created a nuisance by maintaining the Subject Premises in an unsanitary manner.
Petitioner issued a Notice of Termination (Notice) dated May 22, 2013, terminating Respondent's tenancy effective June 17, 2013. The Notice provides:
1. To date you, and/or other occupants of your apartment have continuously permitted the apartment to remain in a filthy unsanitary condition with garbage spread about and a source of stench and serious roach and/or other insect infestation including but not limited to flies. These conditions have also caused roach and/or other insect infestation and stench in other areas of the building. These conditions have also caused a serious health hazzard with respect to other occupants residing in the subject building.
2. To date you have failed to take measures to keep your apartment clean in order to insure that insects and rodents re not attracted to the apartment. You have also failed to insure that your apartment is not a source of stench.
3. You are harboring a cat, dog, and bird in the subject apartment and are not properly caring for said pets which is creating foul odors in your apartment.
4. The landlord has received numerous complaints from other occupants of the building concerning foul odors emanating from your apartment.
5. You are not cleaning the kitchen and bathroom to the subject apartment and leaving same in an unsanitary condition.
The petition is dated June 24, 2013, and the proceeding was initially returnable July 16, 2013. Respondent appeared by counsel on the initial return date, and the proceeding was adjourned for motion practice.
On August 15, 2013, Respondent moved for dismissal based on alleged defects with the predicate notice. On November 20, 2013, the court heard limited argument and reserved decision.
A prior holdover proceeding was brought by Petitioner under Index Number 94584/2009, based on the similar allegations (2009 Proceeding). The 2009 Proceeding was settled pursuant to a stipulation which limited the number of animals Respondent could maintain in the Subject Premises, and pursuant to which Respondent consented to a two year probationary period during which she would maintain the animals and the Subject Premises in a manner agreed to by the parties. The stipulation is dated December 3, 2010. At no timer during the two year probationary period did Petitioner seeks to restore the proceeding for a judgment based on default.
Respondent asserts that she is the sole remaining rent control tenant in the Subject Building and that Petitioner has continuously harassed her to force her eviction from the Subject Premises.
Respondent argues that she was entitled to be served with a notice to cure and that the termination notice served is defective in that it fails to set forth specific dates.
The Notice is issued by Petitioner pursuant to 9 NYCRR §2204.2(a)(2) of the Rent Control Law which does not require service of a notice to cure. Moreover, the authorities have generally held that no notice to cure is required when nuisance is alleged. Based on the foregoing Respondent's motion to dismiss for failure to serve a notice to cure is denied.
The Notice incorrectly references 9 NYCRR § 2204.4 which only applies to proceedings with a certificate of eviction and is not applicable in the case at bar.
The appropriate test in evaluating the adequacy of a notice is one of reasonableness in view of the attendant circumstances (Hughes v Lenox Hill Hospital 226 A.D.2d 4). The notice must be definite and unequivocal and state the default with sufficient particularity that the Respondent will be able to present a defense (Carriage Court Inn v Rains 138 Misc.2d 444).
There is no absolute requirement that the notice contain dates and times of incidents alleged, and a failure to include dates and times does not require a finding that the notice is fatally defective (City of New York v Valera 216 A.D.2d 237). Moreover, Respondent can seek particulars through a Demand for a Bill of Particulars.
The court finds that viewing the Notice in the light most favorable to Petitioner as the court is required to do, the Notice is reasonable under the circumstances. As a matter of law, the period of time in question must be limited to January 2013 through the date of the termination notice. This is a relatively short period of time which makes it easier for Respondent to frame a defense.
While the notice does incorrectly cite one statute (9 NYCRR 2204.4) here is no basis to find that this has prejudiced Respondent or caused confusion as to the underlying claim. No one has otherwise asserted that Petitioner has obtained a Certificate of Eviction.
Based on the foregoing the Respondent's motion to dismiss is denied. Respondent shall serve and file an answer within ten days and the proceeding is restored to the calendar for all purposes on December 19, 2013 at 9:30 am.
This constitutes the decision and order of this Court.