Notice of Termination, Dangerous Dogs & Nuisance. A trifecta of LLT.

University Towers Associates v. Gibson - L&T Index no. 82068/07
Judge Timmie E. Elsner, Kings County Civil Court, Decided: November 20, 2007

Attorneys for Petitioner: Rappaport, Hertz, Cherson & Rosenthal, P.C.
Attorneys for the Respondent: Brent Meltzer,South Brooklyn Legal Services, Inc.


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Petitioner, University Towers Associates ("petitioner") commenced the instant holdover proceeding against the rent-stabilized tenant of record of apartment 12G at 191 Willoughby Street, Brooklyn, NY ("premises"), Maxine Gibson and various undertenants (collectively known as "respondents"). The proceeding is grounded in nuisance; viz., the tenant allegedly by malice or gross negligence caused damaged to the housing accommodation, and engaged in a course of conduct-harboring a pit bull-with the intention of harassing the landlord or other tenants. According to petitioner, the pit bull is an alleged "known dangerous animal" whose presence at the premises creates an threat to the life, health and safety of the other residents.

Respondent Maxine Gibson moves pursuant to CPLR Rule 3211 for an order dismissing the instant proceeding on the grounds that the petition fails to state a cause of action and that the notice of termination fails to state the Facts upon which the proceeding is based as required by 9 NYCRR §2524.2 .

UNDERLYING FACTS

Respondent, Maxine Gibson, entered into possession of Apartment 12G at 191 Willoughby Street, Brooklyn, NY, a rent-stabilized apartment, pursuant to a written lease which commenced on or about August 1, 1982. At an unspecified point in her tenancy, respondent came into possession of a dog, a pit bull. Neither petitioner nor respondent state the dog's name, age or gender in their papers. The petitioner does not allege receiving complaints about the dog from other building residents. There is no claim that the dog has misbehaved or threatened occupants, guests or other pets in or outside the building. There are no claims the pet barks or engages in other nuisance behavior.

1.NOTICE OF TERMINATION: Service of a notice of termination is the necessary predicate to evicting tenants from rent-stabilized apartments. Section 2524.2(b) of the Code details what the notice must contain:

(b) Every notice to a tenant to vacate or surrender possession of a housing accommodation shall state the ground under 2524.3 or 2524.4 of this Part, upon which the owner relies for removal or eviction of the tenant, the facts necessary to establish the existence of such ground, and the date when the tenant is required to surrender possession. (Emphasis added).

The court goes on to analyze what constitutes a dangerous dog and a nuisance and sums it all up as follows:

Without allegations of objectionable conduct by respondent or the dog over a period of time, the Court is constrained to find that no nuisance exists. In this jurisdiction the court cannot create decisional law which would usurp legislative action and notes that while in other states pit bulls are banned by law, e.g., parts of Utah and Florida, no such statute exists in the City or State of New York. A dog is not a per se nuisance; thus a litigant would have to plead and prove a dog's conduct interfered substantially and unreasonably with the rights of other tenants (980 Fifth Avenue Corp. v. Smith, supra ).

CONCLUSION
Based upon the foregoing, the Court finds the notice of termination and petition are defective as a result of petitioner's failure to state a cause of action. Therefore, the petition is dismissed with prejudice.

This constitutes the order and decision of this Court.