Opinion
028216/19
10-29-2019
922 WESTCHESTER OWNER LLC, Petitioner, v. Claudette TELFAIR, "John Doe," "Jane Doe," Respondents.
For Respondent, Mobilization for Justice, Inc., Bridget Mullaly of counsel, 100 William Street, 6th Floor, New York, NY 10038 For Petitioner, Waide Law Offices, 87-14 116th Street, Richmond Hill, NY 11418
For Respondent, Mobilization for Justice, Inc., Bridget Mullaly of counsel, 100 William Street, 6th Floor, New York, NY 10038
For Petitioner, Waide Law Offices, 87-14 116th Street, Richmond Hill, NY 11418
Bryant Tovar, J.
Recitation, as required by C.P.L.R. § 2219(a), of the papers considered in review of this motion.
Papers Numbered
Notice of Motion and Affidavits Annexed 1
Order to Show Cause and Affidavits Annexed
Answering Affidavits
Replying Affidavits
Exhibits 2-22
Other
After oral argument and upon the foregoing cited papers, the decision and order on this motion is as follows:
BACKGROUND & PROCEDURAL POSTURE
The Petitioner, 922 Westchester Owner LLC ("Petitioner"), commenced this holdover proceeding against Claudette Telfair ("Respondent"), based on alleged nuisance. Petitioner served Respondent with a Ten (10) Day Notice to Cure, which stated that Respondent was causing a nuisance and that the Notice to Cure was being provided in accordance with Section 2524.3(a) of the Rent Stabilization Code. This Notice to Cure was dated March 27, 2019, and expired on April 20, 2019. The Ten (10) Day Notice of Termination dated April 22, 2019, ("Termination Notice"), expired on May 20, 2019. The Termination Notice repeats the allegations set forth in the Notice to Cure but does not provide any section of the Rent Stabilization Code authorizing termination of Respondent's tenancy. Both sides are represented by counsel in this proceeding.
The Notice to Cure and subsequent Termination Notice allege Respondent is committing or permitting a nuisance in the subject premises located at 920 Westchester Avenue, Apartment 2C, Bronx, New York 10459. The basis of Petitioner's claim is that the subject premises is "full of clutter, stacked boxes, clothes, black bags and other garbage," which is causing a health hazard and a fire hazard in that it improperly blocks proper means of ingress and egress throughout the apartment. These Notices also allege that Petitioner has received multiple complaints regarding the subject premises which is affecting the peaceful quiet enjoyment of Respondent's neighbors. Further, the Termination notice states that Respondent's conduct has resulted in actual violations of the Housing Maintenance Code.
Respondent now moves to dismiss this proceeding pursuant to CPLR § 3211(a)(7), on the basis that Petitioner has failed to state a cause of action because the allegations in the Notice to Cure and Termination Notice are vague, conclusory, and lack sufficient specificity. Respondent also contends that the Petitioner should be dismissed pursuant to CPLR § 3211(a)(8), for lack of jurisdiction over Respondent because the Termination Notice, Notice of Petition, Petition, and all accompanying Affidavits of Service list the zip code of the subject premises incorrectly. In the alternative, Respondent asks for leave pursuant to CPLR § 3012(d) to file a late answer and for discovery pursuant to CPLR § 408. Respondent's Motion is unopposed by Petitioner.
The Law and Its Application
Appellate authority provides that the standard by which to determine sufficiency of a predicate notice is whether the notice is reasonable in light of the attendant circumstances. ( Oxford Towers Co., LLC v. Leites , 41 AD3d 144, 144 [1st Dept 2007] ; Hughes v. Lenox Hill Hospital , 226 AD2d 4, 17 [1st Dept 1996] lv denied 90 NY2d 829 [1997] ). Namely, the notice must be sufficiently particular so that it does not mislead, confuse the tenant, or hinder the tenant in preparing a defense to the proceeding. (Oxford Towers Co., LLC v. Leites , 31 AD3d at 145). There is, however, no absolute requirement that such predicate notice include specific dates or times, and failure to include dates and times will not mean that a predicate notice will deemed deficient as a matter of law. ( 297 Lenox Realty Co. v. Babel , 19 Misc 3d 1145[A], 2008 NY Slip Op. 51168[U] [Civ Ct, Kings County 2008], citing City of New York v. Valeria , 216 AD2d 237 [1st Dept 1995] ).
A notice to terminate a rent-stabilized tenancy "shall state the ground ... upon which the owner relies for ... eviction of the tenant," and must "state ... the facts necessary to establish the existence of such ground." ( Rent Stabilization Code [9 NYCRR] § 2524.2[b] ). Notices that do not allow a tenant to prepare a defense because they are broad, conclusory, and/or unparticularized have been considered inadequate by the appellate courts of this Department. ( Berkeley Assoc. Co. v. Camlakides , 173 AD2d 193 [1st Dept 1991] ). Furthermore, because proper predicate notices are a condition precedent to the commencement of a holdover proceeding, and because such notices are not subject to cure by amendment, failure to provide adequate predicate notices in a holdover proceeding requires dismissal of the petition. (See Chinatown Apartments, Inc. v. Chu Cho Lam , 51 NY2d 786, 788 [1980] ; Bellstell 140 East 56th Street, LLC v. Layton , 180 Misc 2d 25, 1999 NY Slip Op. 99125 [Civ Ct, NY County 1999] ["Because a valid notice of termination (i.e., one which sets forth sufficient facts) is a condition precedent to the commencement of an eviction proceeding, dismissal of the petition upon which the notice is predicated is required where the notice is deficient Furthermore, because a summary holdover proceeding is entirely the creation of statute, strict compliance with all statutory provisions is demanded."] ).
On a motion to dismiss premised on allegations that the predicate notices lack sufficient specificity so as to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, and determine only whether the facts as alleged fit within any cognizable legal theory. ( Leon v. Martinez , 84 NY2d 83, 87 [1994] ; Guggenheimer v. Ginzburg (43 NY2d 268, 275 [1977] ["[T]he sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail."] ).
In the instant proceeding, Respondent argues that Petitioner's predicate notices are fatally deficient. In support, Respondent points to the lack of any dates and times of any specific instances which might support Petitioner's claim. Respondent also notes that Petitioner fails to provide a lease provision that has been allegedly violated. Further, Petitioner fails to provide evidence of any effort made to ascertain whether Respondent cured the alleged lease violations. Petitioner has provided no opposition to Respondent's motion.
Violation of Substantial Obligation
While failure to include specific dates and times in a predicate notice do not necessarily render it defective, sufficient detail must be provided in order to allow Respondent an ability to present a meaningful defense. ( 297 Lenox Realty Co. v. Babel , 19 Misc 3d 1145[A] ). In the instant proceeding, Petitioner states in its Notice to Cure that Respondent is "committing or permitting a nuisance." However, in the very same Notice, Petitioner states that this Notice to Cure is being provided in accordance with § 2524.3(a) of the Rent Stabilization Code, which provides that a landlord may commence an eviction proceeding where "[t]he tenant is violating a substantial obligation of his or her tenancy other than the obligation to surrender possession of such housing accommodation, and has failed to cure such violation after written notice by the owner that the violations cease within 10 days." It is unclear from the contents of this Notice alone whether Petitioner seeks to proceed with a holdover proceeding grounded in nuisance, pursuant to § 2524.3 (b) of the Rent Stabilization Code, or based on a violation of a substantial obligation of Respondent's tenancy pursuant to § 2524.3 (a), as plead. Petitioner's subsequent Notice of Termination and Petition fail to provide any clarity as to Petitioner's chosen course of action, as both fail to cite any provision of the Rent Stabilization Code pursuant to which this proceeding was commenced. To the extent that Petitioner seeks to proceed on a theory of violation of a substantial obligation of tenancy, Petitioner's Notices are fatally defective in that they have failed to provide any lease provision allegedly violated.
Nuisance Pursuant to RSC § 2524.3 (b)
To the extent that Petitioner seeks to proceed on a ground of nuisance pursuant to Rent Stabilization Code § 2524.3 (b), Petitioner's Notices are defective on the grounds that they have failed to unequivocally provide Respondent with notice of such. ( Chu Cho Lam , 51 NY2d 786 [1980] ; see also 187 Concourse Associates v. Bunting , 175 Misc 2d 870, 1998 NY Slip Op. 98138 [Civ Ct, Bronx County 1997] ; 49 West 12 Tenants Corp. v. Seidenberg , 6 AD3d 243, 2004 NY Slip Op. 02837 [1st Dept 2004] ; 309 E 60th St, LLC v. Attalah , 24 Misc 3d 1219[A], 2009 NY Slip Op. 51522[U] [Civ Ct, NY County 2009] ).
Further, Petitioner's allegation that "[t]he Managing Agent for the building you reside in has received multiple complaints about your apartment which is affecting the peaceful quiet enjoyment of your neighbors" is impermissibly vague. While there is no bright line requirement that Petitioner state the number of complaints, names of those complaining, or date and time of such complaints, Petitioner's allegation fails to state the nature of any alleged complaints or elucidate how Respondent's alleged behavior has indeed affected the peaceful quiet enjoyment of Respondent's neighbors. Petitioner's notice is bereft of any details that would allow the Respondent to form a defense regarding the nature of the alleged behavior, its frequency, and how such behavior affects the tenants of the subject premises.
Conduct in Violation of the Housing Maintenance Code
Petitioner alleges that Respondent's conduct has resulted in actual violations of the Housing Maintenance Code of the City of New York. Petitioner's allegations cite several provisions of the New York City Housing Maintenance Code but fail to provide any evidence of any actual violations. In support, Respondent attaches a record of open violations found by the Department of Housing Preservation and Development for the subject building, and none are attributable to the subject premises. (Exhibit D to Respondent's Motion).
RSC § 2524.3 (c) enumerates a grounds for eviction where "[o]ccupancy of the housing accommodation by the tenant is illegal because of the requirements of law and the owner is subject to civil or criminal penalties therefor[e], or such occupancy is in violation of contracts with governmental agencies." In order to sustain a holdover proceeding under RSC § 2524.3 (c), Petitioner must allege that a violation has been issued against it that renders it subject to civil or criminal penalties. ( 210 W 94 LLC v. Concepcion , 2003 NY Slip Op. 50612[U] [App Term, 1st Dept 2003] [finding dismissal of holdover petition where notice did not allege that an overcrowding violation had been placed against the apartment and that petitioner was thus "subject to civil or criminal penalties" was proper]; JMW 75 LLC v. Wielaard , 47 Misc 3d 133[A], 2015 NY Slip Op. 50473[U] [App Term, 1st Dept 2015] [holding that in the absence of any showing that a violation has been placed against the premises or that landlord was actually "subject to civil or criminal penalties," the proceeding was premature] ).
Petitioner fails to establish that Respondent's alleged behavior has caused actual violations in the subject premises. Accordingly, the portion of Respondent's motion that seeks to dismiss this proceeding is granted.
Conclusion
In the instant proceeding, Petitioner's predicate notices fail to set forth the basis of this proceeding and the facts underlying that basis with sufficient particularity so as to satisfy the standards set forth by § 2524.2 [b] of the Rent Stabilization Code. As proper predicate notices are a condition precedent to maintaining a holdover proceeding, Respondent's motion to dismiss pursuant to CPLR § 3211 (a) (7) is granted and the Petition is dismissed. The Court need not reach the other grounds for dismissal stated in Respondent's motion, and Respondent's motion to interpose a Proposed Answer and for discovery is denied as moot.
It is So Ordered the proceeding is dismissed. This constitutes the Decision and Order of this court.