Karagiannis v Nasr (2007 NY Slip Op 52069(U))

Karagiannis v Nasr

2007 NY Slip Op 52069(U) [17 Misc 3d 133(A)]

Decided on October 23, 2007

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Joan Karagiannis, Appellant,

against

Doreen Hyer Nasr, Respondent, -and- "John Doe", Undertenant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Anne Katz, J.), dated March 9, 2006. The order granted tenant's motion to dismiss the petition.

This holdover proceeding is based on a notice of termination alleging that tenant's denial of access to landlord on two dates, for the purpose of making repairs to remove violations, constituted a nuisance. Tenant moved to dismiss the petition, asserting that the conduct alleged did not constitute a nuisance and thus that landlord was required by the lease to serve a notice to cure and had failed to do so. Landlord appeals from the order which granted tenant's motion to dismiss.

Pursuant to the lease, no notice to cure was required prior to a termination based on nuisance, and, under appropriate circumstances, such as where there is a "long history" of denial of access, a tenant's refusal to allow access can constitute a nuisance (12 Broadway Realty v [*2]Levites, 14 Misc 3d 126[A], 2006 NY Slip Op 52390[U] [App Term, 1st Dept, McCooe, J., dissenting], revd ___ AD3d ___, 2007 NY Slip Op 07481). However, contrary to landlord's contention, the particular facts alleged in the notice of termination herein, involving only two incidents of denial of access, fail to state a claim for nuisance (see Sharp v Norwood, 89 NY2d 1068 [1997]; CHI-AM Realty, Inc. v Guddahl, 7 Misc 3d 54 [App Term, 2d & 11th Jud Dists 2005], affd 33 AD3d 911 [2006]; Wonforo Assoc. v Maloof, 2002 NY Slip Op 50316[U]; see generally 1225 Realty Corp. v Bethea, 10 Misc 3d 143[A], 2006 NY Slip Op 50089[U] [App Term, 1st Dept]; compare Rent Stabilization Code [9 NYCRR] § 2524.3 [b], with § 2524.3 [e]). As tenant correctly argues, although the Rent Stabilization Code does not require a notice to cure as a predicate to terminating a tenancy based on a denial of access to landlord for the purpose of making necessary repairs (Rent Stabilization Code [9 NYCRR] § 2524.3 [e]), the parties agreed in the lease to the requirement that a notice to cure be served prior to a termination on this ground. Since landlord failed to serve the requisite notice, the lease was not properly terminated and remains in effect (see Grenadeir Parking Corp. v Landmark Assocs., 283 AD2d 379, 380 [2001]; 2215-75 Cruger Apts. v Stovel, 196 Misc 2d 346 [App Term, 1st Dept 2003]). Accordingly, the court below properly dismissed the petition.