Our blog posts have addressed the elements of "nuisance" within the landlord-tenant context. And, as we have previously observed, in order to win this kind of dispute, a landlord must usually allege and prove that a tenant has engaged in a repetitive course of conduct which has significantly interfered with another's use and enjoyment of property.*
Most nuisance holdover cases are only preceded by a notice of termination. And, according to a recent decision issued by the Appellate Term, 2nd and 11th Judicial Districts, the failure to recite a pattern of conduct in that notice could serve as an independent basis upon which a tenant may seek a proceeding's dismissal.
In Zarkor LLC v. Edouard, the tenant was accused of accumulating debris "in and around" his apartment. After the landlord had won the case on default -- that is, the final judgment of possession and warrant of eviction were issued in the tenant's absence -- that outcome was challenged by the tenant (who claimed to have suffered an illness on the day the case had been scheduled for trial). Although the Kings County Civil Court refused to entertain the tenant's request, the Appellate Term excused the nonappearance and dismissed the case. Here's how the appellate court supported that outcome:
[I]t is the view of this court that the notice of termination did not constitute a proper predicate for a nuisance holdover proceeding ... because it failed to set forth facts showing a "pattern of continuity or recurrence of objectionable conduct" ....
What can never be dismissed is the importance of factual specificity in predicate notices served upon tenants.
For a copy of the Appellate Term's decision in Zarkor LLC v. Edouard, please click on the following link: http://www.nycourts.gov/reporter/3dseries/2006/2006_52264.htm
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*For a our blog posts on nuisance, please click on the following link: http://www.nyrealestatelawblog.com/search/mt-search.cgi?IncludeBlogs=4&search=nuisance