Pinehurst Construction Corp. v. Schlesinger

OPINION OF THE COURT

Final judgment, entered May 10, 2004, affirmed, with $25 costs.

There is ample record evidence to sustain the trial court’s express factual findings that tenant committed a nuisance (see 9 NYCRR 2524.3 [b]) by engaging over a period of years in an “escalating pattern” of “hostile” and “disturbing” behavior, manifested primarily through her recurrent conduct in banging on her apartment ceiling throughout the night and yelling epithets at and otherwise “hold[ing] dominion over the lives of whomever occupies” the apartment directly above her apartment. While the court acknowledged its sympathy for the tenant and her childhood “privations,” it also recognized that the tenant’s “vicious” and “vitriol[ic]” behavior placed an intolerable burden on other building tenants and appropriately balanced the rights of those tenants in awarding landlord a possessory judgment (see Frank v Park Summit Realty Corp., 175 AD2d 33 [1991], mod on other grounds 79 NY2d 789 [1991]). The concerns raised by the dissent over the appointment of a guardian or the development of some (unspecified) “[alternative treatment” plan for the tenant were not raised by tenant or her counsel either below or on appeal, and there is simply no basis in the existing record to conclude that any such course of action, even if warranted, would remedy the long-standing, acute problems posed by tenant’s aggressive, antisocial behavior (see Stratton Coop, v Fener, 211 AD2d 559 [1995]).

Also unavailing is the tenant’s jurisdictional argument. The termination notice utilized by landlord — alleging, inter alia, that “at various times of the day and night” tenant had “create[d] loud banging noises, yell[ed], verbal[ly] harass[ed], and *28intimidat[ed] . . . other persons in the building” — set forth sufficient facts to enable tenant to prepare a defense and adequately described the conduct which formed the basis for the lease termination (see City of New York v Valera, 216 AD2d 237 [1995]; D.K. Prop, v Mekong Rest. Corp., 187 Misc 2d 610 [2001]). The recitation of more specific information concerning the nature, dates, and times of the tenant’s misconduct was not a jurisdictional prerequisite, but was more properly the subject of a bill of particulars (see City of New York v Valera, 216 AD2d at 238), which, we note, was in fact served by tenant and responded to in detail by landlord.

We have considered tenant’s remaining arguments and find them lacking in merit.

I respectfully dissent. I find that the notice of termination served on the tenant lacked the specificity required under Rent Stabilization Code (9 NYCRR) § 2524.2 (b). Although the notice indicated that landlord had received complaints from occupants of the building, those complaints were listed in general terms. No specific factual allegations were pleaded to document the precise instances and, more important, the nature of the alleged nuisance. A notice must offer specific facts upon which the grounds of termination are based in order to provide the tenant with specific notice of the case against him or her (Kaycee W. 113th St. Corp. v Diakoff, 160 AD2d 573 [1990]). A condition precedent to the termination of a lease is the service of a proper notice of termination (Chinatown Apts, v Chu Cho Lam, 51 NY2d 786 [1980]).

Nor, on the merits, is a possessory judgment in the landlord’s favor warranted on this record. The record reveals that the tenant resided in the building in question for over 30 years. She is a rent-regulated tenant with a rent well below market values. Trial testimony shows that the tenant is an elderly holocaust survivor soon to become an octogenarian with increasing health issues. Should she be evicted, it is unlikely that she could find any housing and there is every likelihood that she would become homeless.

The record indicates that the only tenants impacted by the tenant’s alleged intemperate and, if true, outrageous behavior were her upstairs neighbors. Testimony from other neighbors demonstrates that they were not affected by the tenant’s behavior. The record also suggests that appropriate medical and psychiatric treatment could have resulted in the necessary *29modification of any purported behavioral problems. Alternative treatment and the appointment of an article 81 guardian should have been explored. In this era of special programs and special courts, certainly an appropriate course should have been attempted prior to unnecessarily transforming this elderly, chronically sick, and apparently disturbed tenant into a homeless person. The eviction of the tenant under such circumstances would be unconscionable, and the court or the landlord or both should have referred the matter to Protective Services for Adults, which would undoubtedly have proceeded to petition the court for the appointment of an article 81 community guardian so that psychiatric and medical therapy could have been sought, even over the tenant’s objection. Mild medications suitable for geriatric use often can modify behavior dramatically, which is what appears necessary in this case.

For the reasons stated above, I would reverse the possessory judgment and dismiss the petition.

McKeon, EJ., and Davis, J., concur; Gangel-Jacob, J., dissents in a separate memorandum.