Gardner Management Corp. v. De Leon

44 A.D.2d 812, 355 N.Y.S.2d 424, 1974 N.Y. App. Div. LEXIS 4954

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 21, 1974
• Status: Published

Opinion

Order, Appellate Term, Supreme Court, First Department, entered June 8, 1973, affirming a judgment of Civil Court, entered on December 8, 1972, in favor of petitioner, unanimously reversed, on the law and on the facts, without costs and without disbursements, judgment vacated and the petition dismissed. We agree with the dissenting Justice at the Appellate Term that the most serious charge in the landlord’s 30-day notice (“causing a nuisance in the housing accommodation”) lacks specificity and that the evidence adduced thereunder is generalized and contradictory. The notice accused the tenant of “ constantly ” (about 4 or 5 times) calling the police and fire departments regarding nonexistent gas leaks and floods and “constantly” annoying^ and disturbing other building tenants. Neither petitioner’s president (who admitted the possibility that there might have been some gas leaks) nor the superintendent was able to give particluars as to when those alleged calls occurred. Significantly, petitioner did not subpoena the records of the fire and police departments, although afforded an opportunity to do so by the Trial Judge. Similarly, with regard to the claim of tenant annoyance, the testimony offered by the landlord was vague, hearsay and uncorroborated by any tenant in the building. In short, on the record before us we find an insufficient basis for the termination of this statutory tenancy. Concur — McGivern, P. J., Kupferman, Murphy, Lupiano and Lynch, JJ.