78 5th LLC v. Suriel

Landlord/Tenant Law

New York Law Journal


Judge Marc Finkelstein

The instant holdover proceeding was brought by landlord on the ground of nuisance alleging tenants' conduct interfered with the comfort and safety of other building tenants. The termination notice complained papers were stuffed in the lobby door lock, preventing it from locking, tenants and guests smoked cigarettes and marijuana in the halls, and played basketball in the hallway. Tenants moved for summary judgment dismissing the petition arguing landlord failed to serve a notice to cure or afford them an opportunity to cure as required by the lease. The court found the nuisance complained of here was "indistinguishable from 'improper conduct by tenant annoying other tenants' as set forth in respondent's lease" thus mandated service of a notice to cure. It also noted that to establish nuisance conduct which would not entitle tenant to an opportunity to cure, the termination notice must plead conduct which was recurring or extremely dangerous. The conduct allegedly occurred on three dates in April 2012 and the July termination notice did not allege any other objectionable or nuisance conduct beyond such occurrences. Hence, it was questionable if landlord could establish the conduct was serious enough to eliminate tenant's opportunity to cure, granting dismissal.

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