Opinion
LT-002454-19NA
07-18-2019
Sofia YUN FENG, Petitioner(s), v. Armando CHAMORRO, Alberto Flores, Jose Chamorro, Glafia Oliver, Evelyn Chamorro, Respondent(s).
Monteiro & Fishman LLP, attorneys for Respondents Armando Chamorro and Alberto Flores Sofia Yun Feng, pro se Petitioner Jose Chamorro, Respondent Glafia Oliver, Respondent Evelyn Chamorro, Respondent
Monteiro & Fishman LLP, attorneys for Respondents Armando Chamorro and Alberto Flores
Sofia Yun Feng, pro se Petitioner
Jose Chamorro, Respondent
Glafia Oliver, Respondent
Evelyn Chamorro, Respondent
Scott Fairgrieve, J.
The following named papers numbered 1 to 2 submitted on this Motion to Dismiss on June 7, 2019
papers numbered
Notice of Motion and Supporting Documents 1
Order to Show Cause and Supporting Documents
Opposition to Motion 2
Reply Papers to Motion
Petitioner, pro se , commenced this holdover proceeding to recover possession of the premises located at 411 Central Avenue in Bethpage, New York. Petitioner also seeks the issuance of a warrant to remove respondents from possession, along with use and occupancy in the sum of $2,400.00, together with costs and disbursements.
Respondents Armando Chamorro and Alberto Flores, appear through counsel. Respondents Jose Chamorro, Glafia Oliver and Evelyn Chamorro have not appeared herein. Counsel now moves to dismiss the summary proceeding pursuant to CPLR 3211(a)(7), for failing to state a cause of action. Specifically, counsel alleges that the tenants are in possession under an "unexpired lease," which does not contain a contractual provision for early termination; that the Notice to Quit and Notice to Terminate are legally defective and improper; and that the petitioner/landlord vitiated any purported notice(s) by the acceptance of rent after service of the predicate notices. Petitioner opposes the motion to dismiss. The motion is decided as provided herein.
Petitioner and respondents entered into a written lease agreement for the subject premises. The lease term was for one (1) year, beginning on October 1, 2018, through September 30, 2019. A copy of the lease is annexed to both movant respondents' and petitioner's submissions as Exhibit A. The relevant portion of said lease, entitled "Correcting Tenant's Default" provides:
"If tenant fails to correct a default, after notice from Landlord, Landlord may correct it for Tenant at Tenant's expense. The sum Tenant must repay to Landlord will be added rent" (see Respondents' and Petitioner's Exhibit A, at ¶21).
By letter, dated January 16, 2019, Petitioner served the tenants a "Notice to Quit," which provides, inter alia , that "[d]ue to the rapid deterioration of the property's plumbing and sewage pipes which can lead to hazardous living conditions," the landlord elects to terminate the lease (see Respondents' Exhibit C). Said notice also gives the tenants "30 days notice to quit the premises" and provides that they "must vacate and surrender the premises to the landlord by 12 noon on February 17, 2019" (id. ).
A second notice entitled, "Notice to Terminate" was received by the tenants on or about March 9, 2019 (see Respondents' Exhibit D). It provides, in pertinent part:
"that the landlord elects to terminate your tenancy ... now held by you on a month-to-month basis. Unless you remove from the said premises by April 30h [sic], 2019 ... the landlord will commence summary proceedings in the City/District/Town/Village Court of Nassau County District Court, to remove you from said premises for holding over after the expiration of your term and will demand the value of your use and occupancy of the premises during such holding over" (id. ).
Thereafter, the instant proceeding was commenced by the service of Notice of Petition and Holdover Petition on May 8, 2019. The aforementioned "Notice to Terminate" dated March 9, 2019, is the sole predicate notice annexed to the petition.
" ‘[A] summary proceeding is a special proceeding governed entirely by statute and it is well established that there must be strict compliance with the statutory requirements to give the court jurisdiction’ " ( Clarke v. Wallace Oil Co., Inc. , 284 AD2d 492, 493 [2d Dept 2001] ) (internal citations omitted). A valid termination notice is a condition precedent to a summary holdover proceeding ( Second & E. 82 Realty LLC v. 82nd Street Gily Corp. , 192 Misc 2d 55, 56 [2002] citing 170 West 85 Street Tenants Assn. v. Cruz , 173 AD2d 338 [1st Dept 1991] ). Where a condition precedent has not been met, it may not be satisfied nunc pro tunc by amending the predicate notice ( Second & E. 82 Realty LLC v. 82nd Street Gily Corp. , 192 Misc 2d at 56-57 ; citing Chinatown Apartments, Inc. v. Chu Cho Lam , 51 NY2d 786, 787 [1980] ). Compliance with the statutory provisions constitutes a fact on which the proceeding is based and the petitioner must plead and prove same as part of its prima facie case ( Second & E. 82 Realty LLC v. 82nd Street Gily Corp. , 192 Misc 2d at 57 ; citing RPAPL § 741(4) ; and City of New York v. Valera , 216 AD2d 237 [1995] ).
To be sufficient, the termination notice must be "timely, definite and unequivocal," by alleging grounds for termination, and stating facts to establish the basis for the eviction (see generally United Veterans Beacon House, Inc. v. St. James , 1 Misc 3d 130(A) [App Term, 9th & 10th Jud Dists 2003] ). It must also state the date upon which the tenant is required to surrender possession (id. ). Since a notice to terminate is a prerequisite to the commencement of a summary proceeding, "[a] defective predicate notice provides a tenant with a successful defense against the proceeding, as compliance with the statutory prerequisites constitutes a fact on which the proceeding is based and which the petitioner must plead and provide as part of its prima facie case" ( ATM Four, LLC v. Miller , 37 Misc 3d 1208(A) [Nassau Dist Ct 2012] [internal citations omitted] ).
Here, the court finds that the initial "Notice to Quit," dated January 16, 2019, is defective, as petitioner concedes (see Petitioner's Affidavit at ¶9). As said Notice fails to allege any ground or basis as to how the tenants were in breach of the lease agreement, same is improper. Moreover, it is not the proper predicate notice in the particular circumstances presented (see Scherer, Practice Guide: Residential Landlord-Tenant Law in New York § 8:236 et seq. [2018-2019 ed.] ).
The second "Notice to Terminate," dated March 9, 2019, is also defective on its face, as petitioner erroneously refers to the tenancy as a month-to month, rather than the aforementioned term specified in the lease. Moreover, it fails to include the specific provisions of the rental agreement claimed to have been breached as required, or any basis whatsoever as to why the landlord was terminating the tenancy. Petitioner's arguments in opposition, are unavailing. Absent inclusion of such grounds in the predicate notice, the herein action must be dismissed.
Any remaining arguments advanced by counsel are moot.
In view of the foregoing, the respondents' motion is granted, and the case is dismissed.
This constitutes the decision and order of the court.