8 Misc. 2d 951 | City of New York Municipal Court | 1957
This is a holdover proceeding wherein the petition alleges as a ground therefor the following: “ The tenant has breached his lease by virtue of his keeping a dog in the apartment of the demised premises.” The lease herein, executed July 24, 1956, provides in paragraph seventh, rule 7, as follows: “ (7) No animals of any kind shall be kept or harbored in the demised premises unless expressly permitted in writing by the landlord, and such consent shall be revocable at any time.5 ’ In support of the petition, the landlord relies upon a notice sent to the tenant dated February 8, 1957, as follows: “ Dear Sir: According to the provisions of lease signed by you, Paragraph 7, Rule 7, specifically states that pets are not permitted in the apartment unless by the consent of the landlord.
“ We note that you have a dog in your possession.
Subsequent to such notice, the landlord served a 30-day notice upon the tenant on February 27,1957, stating as the ground for the proposed eviction the following: “ This eviction is brought under and pursuant to statute. The tenant is committing and/or permitting a nuisance in the premises herein and the tenant’s conduct is such as to interfere substantially with the comfort or safety of the landlord or with other tenants or occupants of the premises herein. That despite notice to the tenant, said tenant has kept a dog in apartment and in the demised premises.” This 30-day notice sets forth as the ground for the proposed eviction, not breach of lease, but the alleged nuisance and conduct of the tenant as set forth in subdivision 2 of section 52 of the State Rent and Eviction Regulations. Thus, the 30-day notice is defective (cf. Blozevich v. Tasber, 116 N. Y. S. 2d 801, 804, 805). Subdivisions 1 and 2 of section 53 of the State Rent and Eviction Regulations provide as follows:
“ 1. Except where the ground for removal or eviction of a tenant is non-payment of rent, no tenant shall be removed or evicted from housing accommodations by court process and no action or proceeding shall be commenced for such purpose upon any of the grounds permitted in Section 52 unless and until the landlord shall have given written notice to the tenant and the. Local Rent Office as hereinafter provided.
“ 2. Every notice to a tenant to vacate or surrender possession of housing accommodations shall state the ground under Section 52 upon which the landlord 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.” (Italics supplied.)
In any event, the court finds the landlord has failed to sustain its burden of proof that the tenant is committing or permitting a nuisance in the housing accommodations or that his conduct is such as to interfere substantially with the comfort or safety of the landlord or of other tenants or occupants of the premises in question. Inasmuch as the housing accommodations are under control, the only other possible ground for a proceeding for eviction in this case without certificate appears to be subdivision 1 of section 52 of the State Rent and Eviction Regulations which provides as a ground therefor: “ 1. The tenant is violating a substantial obligation of his tenancy other than the obligation to surrender possession of such housing aceommoda-
Accordingly, petition dismissed. Final order for tenant.