This is a nuisance holdover proceeding. Petitioner alleges in its August 2003 termination notice that respondent urinated on his building in 2001 and 2002 during the period covered by a November 2002 stipulation of settlement and once outside his building in July 2003. Petitioner further alleges that respondent urinated once inside and once just outside his building in September 2003, after its termination notice issued. Respondent moves for summary judgment to dismiss this proceeding with prejudice. Respondent argues that petitioner is precluded from relitigating claims resolved in the November 2002 stipulation, that post-termination conduct is irrelevant, and what remains of the allegations in the termination noticeľone incident of urination—cannot terminate his tenancy.

A termination notice must outline the alleged grounds that by themselves serve as the predicate to end a landlord-tenant relationship and begin a proceeding. A landlord may include in a termination notice and use at trial conduct covered by a settled case to prove the elements of a nuisance, such as whether the tenant's conduct was recurring or continuous; to disprove a tenant's defenses, such as whether the tenant is responsible for the conduct; to argue over whether [*2]the tenant can cure the nuisance; or to debate for how long the warrant of eviction should be stayed. But the doctrine of res judicata forbids a landlord from relying in a termination notice, which must be sufficient on its face, on allegations already disposed of. A landlord may similarly use at trial for purposes too many to enumerate conduct committed after a termination notice issues. Once again, however, a termination notice must be facially sufficient. Post-notice allegations cannot enhance an otherwise-insufficient notice.

Given these principles—that the doctrine of res judicata forbids the court to consider resolved conduct to assess the adequacy of a termination notice and that conduct occurring after a termination notice issues cannot rehabilitate a defective notice—the court is left in this proceeding with one incident of urination. As a matter of law, one urination episode outside a building as alleged in the termination notice does not satisfy the requirements of a nuisance. As the Court of Appeals explained last month, a "[n]uisance imports a continuous invasion of rights—'a pattern of continuity or recurrence of objectionable conduct.'" (Domen Holding Co. v Aranovich, __NY2d__, 2003 NY Slip Op 18779, * 7 [Ct App, Nov. 24, 2003] [page references to typed slip op; pagination not yet available online], quoting Frank v Park Summit Realty Corp., 175 AD2d 33, 35 [1st Dept, mem], mod on other grnds 79 NY2d 789 [1991].) One incident does not a pattern make.

The proceeding is dismissed, but without prejudice. Petitioner is free to recommence this proceeding, if it deems it advisable and has the basis to do so, alleging in a new termination notice the settled 2001 and 2002 alleged objectionable conduct and the July and September 2003 allegations. These incidents together, but not one of them alone, might show a pattern of objectionable conduct. As the courts have noted often, proceedings dismissed because of deficient notices must be dismissed "without prejudice to the landlord's commencement of a new proceeding, if so advised, after the service of a new and proper 30-day notice." (Kaycee W. 113th St. Corp. v Daikoff, 160 AD2d 573, 574 [1st Dept 1990, mem].)

Respondent, Alan Lazansky, is an 84-year-old wheelchair-bound man who has lived in his rent-controlled apartment in a cooperative building for 43 years. Petitioner, the apartment's proprietary lessee, owns the shares appurtenant to the apartment. Respondent suffers from two debilitating illnesses: congestive heart failure, for which he takes large doses of diuretics, and vascular dementia. Diuretics cause incontinence. Dementia leads to faulty decision making like urinating in public.

Respondent purportedly urinated against his building's outer wall and on the building's public roof deck an undisclosed number of times in 2001 and 2002. In 2002, petitioner brought a holdover proceeding alleging nuisance. (See Index No. L&T 088141/02.) That proceeding was settled in open court on November 14, 2002, by a so-ordered stipulation. Respondent admitted nothing in the stipulation. But the stipulation provided for a six-month probationary term in which respondent agreed not to urinate in or around the building. The stipulation also provided [*3]that upon breach, petitioner could move for a judgment and "a trial." Under the stipulation, "[t]he acts which may constitute a breach * * * shall be only those which occur after the signing of this stipulation."

No objectionable conduct occurred while respondent was on probation. Respondent and others on his behalf did what they could to avoid a recurrence. Medicaid increased respondent's home care to eight hours a day. Respondent left his building at least 12 hours a week to go to a senior center in Chelsea. His wife, Alicia Lazansky, with whom he lives, tried to assure that he would empty his bladder before he left his apartment. Respondent began to use adult diapers. The efforts were successful. His probationary term ended successfully on May 14, 2003.

Nine weeks later, on July 21, 2003, respondent and his home-care attendant were returning from an afternoon around the neighborhood. The attendant left respondent in his wheelchair while she took some packages upstairs to his apartment. The attendant returned to learn that respondent had urinated into a planter just outside his building.

Petitioner then served the termination notice at issue, dated August 21, 2003, again alleging nuisance in violation of New York City Rent and Eviction Regulations (9 NYCRR) § 2204.2 (a) (2). Section 2204.2 (a) (2) provides that a landlord may commence a proceeding to recover possession of a housing accommodation if "[t]he tenant is committing or permitting a nuisance in such housing accommodations; or is maliciously or by reason of gross negligence substantially damaging the housing accommodation; or his conduct is such as to interfere substantially with the comfort and safety of the landlord or of other tenants or occupants of the same or another adjacent building or structure." The August 2003 termination notice contains these contentions:

"On July 21, 2003 at approximately 3:35 p.m. you were observed urinating into a planter adjacent to the outside of the building by two building residents and building staff.

"On July 21, 2003 you proceeded to urinate into the planter despite the fact that you were asked to stop.

"In 2001 and 2002 you were observed on several occasion [sic] urinating against the outer wall and on the public roof deck of the building by residents of the building."

Beyond the acts in the termination notice, petitioner alleges, in counsel's affirmation in opposition, that respondent urinated twice—once inside the lobby, once alongside the building—in September 2003, after its August 2003 termination notice issued.

The August 2003 termination notice raises two questions. The first, according to respondent, is whether a landlord may evict for an act covered in a stipulation that settles a proceeding. The answer to the question as respondent frames it is that the doctrine of res judicata forbids a landlord to re-prosecute a finished case. The question is, however, more nuanced than respondent suggests. The question as the court sees it is whether a termination notice may include settled conduct, and the answer to that is that it may but that a notice may not rely on settled conduct. That removes from consideration the 2001 and 2002 allegations and leaves the court with one act of urination, the one that supposedly occurred in July 2003, and brings to the fore the second question: Whether a landlord's reliance in a termination notice on a single incident of urination outside a building sufficiently establishes nuisance as a matter of law. The answer is that it does not.

Before the court addresses these questions, it must consider petitioner's allegation that respondent committed objectionable conduct post-termination.

The Alleged Post-Termination Conduct

To determine whether the termination notice is valid, the court must first decide whether it may consider petitioner's counsel's statement that respondent urinated twice in September 2003, after his tenancy was terminated—the first time when he sat on a chair in his lobby and his urine supposedly leaked through his diaper, the second when he supposedly pulled his pants down and urinated along the side of the building.

As an initial matter, the court may place no stock in counsel's affirmation, in which someone without personal knowledge avers to facts. (See e.g. Zuckerman v City of N.Y., 49 NY2d 557, 563 [1980] ["[A]n affirmation by counsel is without evidentiary value and thus unavailing."].) In any event, post-notice acts cannot supplement or supplant a predicate notice leading to eviction if the notice itself is insufficient—or, put another way, post-notice acts can expand only an already-adequate notice.

A proceeding rises or falls on the allegations in a termination notice, not on post-notice conduct. The Court of Appeals found unanimously in Domen Holding (2003 NY Slip Op 18779, *8 ) that a termination notice must be "adequate" on its face. According to the Domen Holding Court, "subsequent submissions" can be "an elaboration of incidents" and "evidence of ongoing nuisance" but "not an attempt to cure a defect in the notice." (Id.) That principle has long-standing jurisprudential support. In Chinatown Apts., Inc. v Chu Cho Lam (51 NY2d 786, 788 [1980, mem]), for example, the Court found that a deficient termination notice may not be cured retroactively. Numerous reported cases, relying on Chinatown Apartments, have found that post-notice submissions that embellish a termination notice may not rehabilitate a defective notice. (See e.g. Sansue Realty Corp. v Gonzalez, NYLJ, Sept. 12, 2001, at 21, col 5 [Hous Part, Civ Ct, Kings County] ["Failure to include sufficient details in the Notice of Termination cannot be cured by submitting the details at some later point in the proceeding * * * * "]; 728 Property Assocs. v Millard, NYLJ, Aug. 29, 1990, at 22, col 4 [Civ Ct, NY County] [finding amplification [*5]of facts immaterial because notice itself must contain facts to establish cause of action]; Federal v Ortiz, 139 Misc 2d 274, 276 [Hous Part, Civ Ct, Kings County 1988] [noting that defects in notice "cannot be cured by a recitation in a party's papers in opposition to a motion to dismiss"].)

Although a termination notice may not be amended, evidence at trial may include for various purposes post-notice misconduct if admissible under the rules of evidence. (See e.g. Carnegie Park Assocs. v Graff, NYLJ, Aug. 13, 2003, at 18, col 1 [App Term 1st Dept, per curiam] [noting that nuisance was "continuing through the trial"]; Harran Holding Corp. v Johnson, NYLJ, Dec. 1, 1983, at 6, col 3 [App Term 1st Dept, per curiam] [finding after trial that tenant caused flooding on at least four occasions, two of which occurred after landlord served termination notice].) Evidence of that subsequent conduct might, among many other possibilities, like proving identity or intent or lack of mistake or accident, provide additional support for and further proof of a landlord's contention that a tenant engaged in a pattern of objectionable conduct, a prerequisite under Domen to proving a nuisance. (See 2003 NY Slip Op 18779, *7.) That is what the Court of Appeals permitted in Domen when it wrote that a landlord may offer post-termination proof as "evidence of ongoing nuisance." (Id. at 8.)

The First Department's 3-2 opinion in Domen has been the subject of commentary. (See e.g. Warren A. Estis and William J. Robbins, Landlord-Tenant, Nuisance Behavior: What Kind of Conduct Warrants Eviction?, NYLJ, Feb. 5, 2003, at 5, col 2.) One commentator, critiquing the First Department's majority holding in Domen before the Court of Appeals reversed (see 302 AD2d 132 [1st Dept 2003]), explained the reasoning this way: "Such further proof is not an amendment of the notice, but an establishment of the case. And, it is not unreasonable for a trier of fact to believe that while it might have some doubts about the actual occurrence of one of the events set forth in the notice, those doubts can be resolved by unimpeachable evidence of another similar incident that is part of the same pattern." (Dov Treiman, 31 HCR Comm 3, 5 [2003].) By the same token, a tenant in New York City may offer proof of pre- and post-notice efforts to cure the nuisance under RPAPL 753 (4) (id. at 5 & n 15), while a landlord may rebut a tenant's measures to cure taken before or after the termination notice issued.

If post-notice objectionable conduct, and even objectionable conduct not in a notice, is admissible if relevant, the validity of a nuisance proceeding is judged from its inception by a termination notice, and the adequacy of the termination notice is judged by limiting its examination strictly to its four corners. A termination notice is a guillotine that severs a tenancy and allows a landlord to begin an eviction proceeding. The proceeding must be dismissed if the termination notice contains insufficient facts to establish a ground for eviction. (E.g. Jewish Theological Seminary of Am. v Fitzer, 258 AD2d 337, 338 [1st Dept 1999, mem].) The factual allegations in a termination notice must by themselves sufficiently describe the nuisance to establish the grounds to terminate the tenancy and, concurrently, to allow a tenant to defend against eviction. (Berkeley Assocs. Co. v Camlakides, 173 AD2d 193, 194 [1st Dept, mem], affd 78 NY2d 1098 [1991, mem]; Kaycee W. 113th St., 160 AD2d at 574.) A predicate notice "need not lay bare a landlord's trial proof." (McGoldrick v DeCruz, 195 Misc 2d 414, 415 [App Term, 1st Dept 2003, per curiam].) It suffices if "the notice is as a whole sufficient adequately to advise [*6]* * * tenant and to permit it to frame a defense." (Id. [internal quotation marks omitted].) If the notice is insufficient, however, the tenancy continues, and the proceeding is deprived of all basis. (E.g. Carriage Court Inn, Inc. v Rains, 138 Misc 2d 444, 445 [Civ Ct, NY County 1988] ["[I]f this court finds that the notice of termination was insufficient, the proceeding must be dismissed."].)

The Alleged Prior-Proceeding Conduct

Petitioner included in its 2003 termination notice the same allegations it included in its 2002 termination notice, which resulted in its filing a nuisance holdover under Index No. L&T 088141/02: that respondent urinated on the building in 2001 and 2002. A stipulation in November 2002 resolved that proceeding, in which respondent neither admitted nor denied the accusations but in which the parties agreed to put respondent on a six-month probationary term. The stipulation provided that "[t]he acts which may constitute a breach * * * shall be only those which occur after the signing of this stipulation." Respondent's probationary term ended without incident in May 2003. Petitioner included the resolved accusations of nuisance, not to revive the earlier litigation or to prove that respondent breached the stipulation, but rather to show that respondent is and has engaged in a pattern of objectionable conduct that justifies a stricter, more effective cure than before or, failing that, eviction. As petitioner put it, "There is nothing in the Stipulation of Settlement which bars the Petitioner from including the prior incidents of misconduct by the Respondent as part of the pattern of conduct creating a nuisance in a subsequent proceeding." (Affirm. of Steven H. Cohen, Nov. 25, 2003, at 8, ¶ 23.)

The court agrees with petitioner that a landlord is entitled to include settled objectionable conduct in a termination notice and to prove that misconduct in a later proceeding to show a pattern of nuisance. Had respondent admitted in the 2002 stipulation that he committed the misconduct alleged, the proof would have come from the stipulation itself. A landlord may use at trial for a variety of purposes matters settled during an earlier proceeding, just as a landlord, as explained above, may use post-termination misconduct as "an elaboration of incidents" and "evidence of ongoing nuisance." (Domen Holding, 2003 NY Slip Op 18779, *8.) But a landlord may not use settled conduct in "an attempt to cure a defect in the notice." (Id.) Thus, petitioner may not rely on allegedly objectionable acts already addressed and settled in an earlier proceeding as a predicate in a termination notice to commence a new proceeding unless, absent that already-addressed and settled conduct, the termination notice satisfies the elements of a nuisance proceeding.

Were the law different, a stipulation that provided for a fixed term of probation, like the one here, which set a six-month term, would extend well beyond the time limit the parties negotiated and the court so-ordered. All a landlord would need to do is to settle a proceeding with a probationary term and await a tenant's engaging in one act of nuisance sometime after the probation ends to commence a new proceeding. And if the law were different, one act of nuisance so trivial it would not affect the health, safety, or comfort of neighboring tenants could, when combined with settled conduct, compel an eviction for nuisance. These [*7]possibilities—eventualities, really, if the law were as petitioner proposes—would end a fact of life that occurs daily in the Civil Court's Housing Part and which inures to the great benefit of landlords, tenants, and the public alike: a stipulation that resolves a holdover proceeding with a term of probation. (See Matter of Snyder v Foster, 190 NY 66, 73 [1907] [noting "'ancient and honored rule of law that settlements are to be encouraged'"], quoting Fischer-Hansen v Brooklyn Heights R.R. Co., 173 NY 492, 500 [1903]; Estate of Hoffman v Warshaw, 287 AD2d 119, 124 [1st Dept 2001] [noting that allowing a party to relitigate claim settled by stipulation "would have a chilling effect" on future settlements].)

Respondent's motion for summary judgment would resonate not at all if the parties had not resolved their 2002 litigation to its final conclusion, one successful to both sides, or if petitioner had not begun that proceeding but instead had accumulated acts of misconduct, keeping them in reserve for this case. Petitioner would then be able to call upon in its termination notice at least three alleged incidents of urination in and around the building, the two or more from 2001 and 2002 and the one from July 2003—a pattern, in other words, of nuisance.

But the 2002 litigation was settled on the merits. (Cf. Maitland v Trojan Elec. & Mech. Co., 65 NY2d 614, 615-616 [1985, mem] [allowing relitigation because prior action dismissed for failing to comply with disclosure order, not on merits]; Clearwater Realty Co. v Hernandez, 256 AD2d 100, 101 [1st Dept 1998, mem] [allowing relitigation because prior action dismissed for failure to prosecute, not on merits]; Stevens v Kirk, 171 AD2d 587, 587-588 [1st Dept 1991, mem] [allowing state claim because prior federal-court case was dismissed for lack of jurisdiction, not on merits].) As the First Department has noted, "a settlement agreement entered into between th[e] parties * * * in a prior action predicated on the same causes as are asserted [in a second proceeding] bar[s] the * * * attempt at relitigating those causes." (Twumasi v TJMT Trans. Svcs, Inc., 267 AD2d 153, 154 [1st Dept 1999, mem]; accord Gurvey v Lynch, 282 AD2d 367, 367 [1st Dept 2001, mem] [barring plaintiff from relitigating claims previously established in stipulation], lv denied 100 NY2d 640 [2003].)

The intent and purpose of the November 2002 stipulation was to settle the incidents that led to the proceeding's commencement. (See e.g. Kraker v Roll, 100 AD2d 424, 436 [2d Dept 1984] [noting that "[a] stipulation is a contract between parties" and that court's "task * * * is to determine the intent and purpose of the stipulation"].) The 2001 and 2002 incidents of urination, which were resolved with finality in the November 2002 stipulation, cannot supplement a termination notice that, without those incidents, evince no pattern of nuisance.

Thus, the next issue is whether the one supposed act of respondent's urination outside his building as alleged in the termination notice is by itself adequate to have a trial to determine whether respondent should be evicted as a nuisance.

The Remaining Objectionable Conduct

A nuisance is a continuous or persistent condition that threatens the comfort and safety of [*8]neighboring tenants or other building occupants and which is likely to recur. (Frank, 175 AD2d at 35-36, cited with approval in Domen Holding, 2003 NY Slip Op 18779, *7; see also Nussbaum v Lacopo, 27 NY2d 311, 316 [1970] ["Nuisance imports a continuous invasion of rights * * * *"]; 301 E. 69th St. Assocs. v Eskin, 156 Misc 2d 122, 123 [App Term, 1st Dept 1993, per curiam] [defining "nuisance" as "a pattern of objectionable conduct likely to recur"]; Metropolitan Life Ins. Co. v Moldoff, 187 Misc 458, 460 [App Term, 1st Dept 1946, per curiam] [finding that releasing illuminating gas in kitchen in "mere isolated instance of an attempt at self-destruction is not and does not constitute a nuisance"], aff'd 272 AD 1039 [1st Dept 1947, mem]; Acorn Realty, L.L.C. v Torres, 169 Misc 2d 670, 671 [App Term, 1st Dept 1996, per curiam] [finding that recurring incidents of vandalism and urinating and marijuana use in public hallways constitute nuisance]; Pamac Realty v Bush, 101 Misc 2d 101, 102 [Civ Ct, NY County 1979] [finding alcoholic's single and unintentional incendiary incident insufficient to establish nuisance].)

In Domen, the Court of Appeals modified the Appellate Division's order, denied the tenant's cross-motion for summary judgment, reinstated the landlord's ejectment action, and remitted the case for trial. The Court found that the termination notice at issue in that case provided three fact-specific examples of outrageous conduct, threats of violence, and actual use of violence by the tenant's guest. The termination notice "include[d] names, dates, a description of the misconduct and police complaint numbers." (Domen Holding, 2003 NY Slip Op 18779, *8.) The detailed allegations of misconduct in the termination notice suggested that the tenant's guest "displays intolerance and aggression toward those living and working within the building." (Id. at 9.) The Court also noted that the allegations suggest that the tenant's guest "is easily incensed and prone to violent outbursts from time to time and, therefore, that his continued residency in the building places the comfort and health of others in the building at a constant risk." (Id.)

In this case, petitioner, without the benefit of using post-notice conduct and conduct settled pre-notice, relies in its termination on one non-violent incident: urination in a planter outside a building by an 84-year-old incontinent man suffering from dementia. It matters not, as respondent argues, that his conduct was "involuntary [;] the dispositive issue * * * is not tenant's state of mind, but the nature of tenant's conduct and its effect upon the comfort and safety of other tenants and building staff." (301 E. 69th St., 156 Misc 2d at 123.) But this one incident is insufficient as a matter of law to allow a trial to go forward. It is a far cry from any nuisance alleged in Domen. And that one incident, which allegedly occurred while respondent's home-care attendant absented herself momentarily, manifests, in the single incident remaining in the termination notice, no continuous or persistent condition likely to recur.

Summary judgment must be granted to respondent. The petition is dismissed. Although respondent urges dismissal with prejudice, the law requires dismissal without prejudice. (See Valley Courts, Inc. v Newton, 47 Misc 2d 1028, 1031 [Syracuse City Ct, 1965] [holding that [*9]landlord unsuccessful in proving continuity of misconduct may plead same acts in later proceeding if misconduct persists], cited with approval in 2 Rash, New York Landlord and Tenant, Including Summary Proceedings § 30:60, at 468 n 230[ Robert F. Dolan 4th ed 1998].)

This opinion is the court's decision and order.

Dated: December 29, 2003

J.H.C.

Decision Date: December 29, 2003