Opinion
2021-50888
09-17-2021
Hollis Partners, LLC, Respondent, v. Vanessa Artis, Appellant, et al., Undertenants.
The Legal Aid Society-Queens Office (Katie Redmon of counsel), for appellant. Shiryak, Bowman, Anderson, Gill & Kadochnikov, LLP (Dustin Bowman of counsel), for respondent (no brief filed).
Unpublished Opinion
The Legal Aid Society-Queens Office (Katie Redmon of counsel), for appellant.
Shiryak, Bowman, Anderson, Gill & Kadochnikov, LLP (Dustin Bowman of counsel), for respondent (no brief filed).
PRESENT:: WAVNY TOUSSAINT, J.P., MICHELLE WESTON, DAVID ELLIOT, JJ.
Appeal from an order of the Civil Court of the City of New York, Queens County (Julie Poley, J.), dated December 18, 2019. The order denied tenant's motion to dismiss the petition in a holdover summary proceeding.
ORDERED that the order is reversed, without costs, and tenant's motion to dismiss the petition is granted.
In this residential holdover proceeding, tenant appeals from an order which denied her motion to dismiss the petition on the ground that the notice of termination, which alleged eight separate instances of nuisance (see Rent Stabilization Code [RSC] [9 NYCRR] § 2524.3 [b]), was defective.
A notice of termination must "adequately apprise [the] tenant of the grounds upon which the termination was based" (323 3rd St. LLC v Ortiz, 13 Misc.3d 141 [A], 2006 NY Slip Op 52268[U], *2 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]; see Peng v Van Zandt, 14 Misc.3d 138 [A], 2007 NY Slip Op 50272[U] [App Term, 1st Dept 2007]). 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 [internal quotation marks omitted]).
We find that the termination notice upon which this proceeding is based was defective to allege a nuisance (see RSC § 2524.3 [b]; see also Domen Holding Co. v Aranovich, 1 N.Y.3d 117, 123 [2003]; Frank v Park Summit Realty Corp., 175 A.D.2d 33, 35 [1991], mod on other grounds 79 N.Y.2d 789 [1991]; Giga Greenpoint Realty, LLC v Mounier, 61 Misc.3d 135 [A], 2018 NY Slip Op 51510[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Montemuino v Gelber, 33 Misc.3d 133 [A], 2011 NY Slip Op 51995[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). We note that, to the extent landlord's overcrowding allegation may have been based, not upon RSC § 2524.3 (b) (nuisance) as indicated in the notice of termination, but rather upon RSC § 2524.3 (a) (breach of a substantial obligation of the tenancy) or RSC § 2524.3 (c) (permitting the termination of the tenancy where occupancy is illegal, subjecting landlord to civil or criminal penalties), the notice does not sufficiently allege those grounds for termination either (see 321 Bay Ridge Co., Inc. v Cordova, 68 Misc.3d 130 [A], 2020 NY Slip Op 50954[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Brooklyn Home for Aged People Hous. Dev. Fund Co. v Selby, 32 Misc.3d 130 [A], 2011 NY Slip Op 51314[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Landlord is "bound by the notice served" (Singh v Ramirez, 20 Misc.3d 142 [A], 2008 NY Slip Op 51680[U], * 2 [App Term, 2d Dept, 2d & 11th Jud Dists 2008] [internal quotation marks and citation omitted]), which is not subject to amendment (see Chinatown Apts. v Chu Cho Lam, 51 N.Y.2d 786, 788 [1980]). As none of the allegations in landlord's notice of termination sufficiently support landlord's claim of nuisance, the petition must be dismissed.
Accordingly, the order is reversed and tenant's motion to dismiss the petition is granted.
TOUSSAINT, J.P., WESTON and ELLIOT, JJ., concur.