Opinion
L & T Index No. 10133/2020
07-19-2021
WOODLAWN 278-305, LLC, Petitioner-Landlord, v. Camille BARNETT, Respondent-Tenant, and "John Doe" and "Jane Doe", Respondents-Undertenants.
Attorney for Petitioner: Jeffrey Hulbert, Esq., Jhulbert@hwrpc.com Attorney for Respondent: David Singer, Esq., Dsinger@legal-aid.org
Attorney for Petitioner: Jeffrey Hulbert, Esq., Jhulbert@hwrpc.com
Attorney for Respondent: David Singer, Esq., Dsinger@legal-aid.org
Diane E. Lutwak, J.
Recitation, as required by CPLR Rule 2219(a), of the papers considered in the review of Respondent's Motion to Dismiss and for other relief:
Papers/Numbered
Notice of Motion, Supporting Affirmation & Exhibits A-E 1, 2, 3-7
Affirmation in Opposition & Exhibits A-F 8, 9-14
Affidavit of Cathy Bellantone in Opposition 15
Affidavit of Shemsedin Berdynaj in Opposition 16
Affirmation in Reply & Exhibit A 17, 18
In this holdover proceeding the petitioner-landlord seeks to evict the Rent Stabilized respondent-tenant based on allegations of objectionable conduct. The petition is predicated on, and incorporates by reference, a ten-day notice to cure and a ten-day termination notice. Now before the court is respondent's pre-answer motion to dismiss for failure to state a claim under CPLR R 3211(a)(7) based upon the alleged insufficiency of both predicate notices. In the alternative, respondent seeks a stay of the proceeding under the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 ("CEEFPA") and leave to serve and file an answer to the petition within ten days of the later of the court's decision or the expiration of the CEEFPA stay. For the reasons that follow, the motion is granted and the petition is dismissed without prejudice.
While the caption includes "John Doe" and "Jane Doe" as respondents, references herein to "respondent" refer to Camille Barnett, the only one to appear in response to the petition.
At oral argument respondent withdrew the argument under CPLR R 3211(a)(1) that the petition should be dismissed because the predicate termination notice was improperly served.
The Ten-Day Notice to Cure
Dated November 25, 2019, the ten-day notice to cure consists of four paragraphs. In the first paragraph, the notice alleges that respondent was in violation of a substantial obligation of the tenancy pursuant to Rent Stabilization Code § 2524.3(a) and five specified provisions of the parties’ lease dated September 1, 2019 due to three categories of conduct: (1) harboring a dog; (2) smoking "cigarettes and/or marijuana" in and around the building; and (3) not properly disposing of garbage. The second paragraph alleges that the same conduct violates Rent Stabilization Code § 2524.3(b) as respondent was "engaging in a persistent and continuing course of conduct evidencing an unwarranted, unreasonable or unlawful use of the property to the annoyance, inconvenience, discomfort or damage to others, by interfering substantially with the comfort and safety of other residents at the building." The third paragraph lists eleven facts upon which the two legal grounds are based:
• two incidents with dates and times in October 2019 on which respondent "and/or your occupants" were seen walking around the building with a "small, dark short-haired dog";
• two incidents with dates and times in September 2019 on which respondent "and/or your occupants" were seen "smoking in the courtyard of the building";
• one incident in October 2019 with a specified date and time when respondent "and/or your occupants" were "smoking marijuana inside the Premises, which caused the smoke and smell to permeate the walls and enter the common area hallway directly outside your apartment door";
• one incident in October 2019 on a specified date when respondent was "seen bringing garbage from your apartment and leaving it in the sidewalk tree boxes instead of the designated garbage bins located in the garbage area of the side courtyard";
• a brief description of three letters petitioner sent respondent in October 2019: the first, dated October 8, 2019, advised that "you are not permitted to smoke in the common areas in or around the building"; the second, dated October 9, 2021 advised of the "numerous complaints" of loitering in the building's common areas petitioner had received about respondent "and/or your occupants"; and the third, dated October 17, 2019, advised of the building's rule against disposing garbage outside of designated garbage bins;
• the statement that respondent is "responsible for "your actions and those of your family, friends, guests and invitees";
• the statement that "Your actions have negatively affected the quality of life in the subject building."
The fourth paragraph advises respondent that if respondent failed to cure the alleged violations "by permanently removing the dog from the subject premises, stopping all loitering, smoking and improper disposal of garbage" by December 13, 2019, petitioner would terminate the tenancy.
The Ten-Day Notice of Termination
Dated February 3, 2020, the termination notice consists of six paragraphs. First, the notice advises respondent that the tenancy was being terminated and, if respondent did not move by February 20, 2020, petitioner would commence a summary proceeding. The second, third and fourth paragraphs are identical to the first, second and third paragraphs of the notice to cure. The fifth paragraph asserts that respondent failed to cure the previously stated alleged violations of the lease and lists four dates and times in December 2019, January 2020 and February 2020, all after the December 13, 2019 expiration of the notice to cure, when "there was a strong odor of marijuana that permeated directly from your apartment and out into the common hallway on your floor." The sixth paragraph is similar to the first paragraph but also advises respondent that the tenancy was being terminated because of the "failure to timely comply with the terms of the Notice to Cure and/or the Lease Agreement" and "continual violations of the Lease after expiration of the Notice to Cure" (emphasis in original).
Respondent's Arguments
Respondent's moving and reply papers assert the following grounds for dismissal due to defective predicate notices:
• both predicate notices fail to meet the requisite standard of "reasonableness in view of the attendant circumstances" as they inadequately set out which factual allegations pertain to which legal claim, making them confusing and hindering the preparation of a defense;
• all claims based on conduct other than smoking should be dismissed as the only specific post-cure period factual allegations in the termination notice pertain to smoking;
• as to the smoking allegations: both notices are unreasonably misleading, confusing and insufficiently particularized as they "misquote the nuisance standard under which eviction is sought by omitting that the primary purpose of the behavior must be to harass"; fail to allege "the primary purpose of the smoking and/or the effect it had on others"; omit the names or descriptions of the persons who engaged in the conduct and those affected by or who witnessed the smoking; fail to state how petitioner learned of the alleged post-cure period smoking; fail to cite to the lease provision - ¶ 16(5) - which authorizes eviction due to breach of lease; and fail to specifically identify which lease provisions are violated by the alleged smoking;
• paragraphs 15 and 20(1) of the parties’ lease — cited in both predicate notices — are impermissible bases for this proceeding as the former, which requires the tenant "to obey laws and regulations", is not supported by reference to any directives violated by respondent and the latter is "impermissibly vague" in its prohibition of "annoying sounds, smells and lights" (emphasis added).
Petitioner's Arguments
In opposition to the motion to dismiss, petitioner argues the following:
• both predicate notices meet the "reasonableness" standard and respondent should be able to prepare a defense as they clearly state the two sections of the Rent Stabilization Code under which petitioner is proceeding, three categories of objectionable conduct, five relevant lease provisions and dates and times of specific incidents; given these details, there is no need for additional specifics such as the names of witnesses;
• the termination notice includes four post-cure period allegations of marijuana smoking with dates and times;
• the two affidavits in opposition of petitioner's building agent and superintendent - which are permitted in opposition to a CPLR R 3211(a)(7) motion to remedy any defects in the complaint - describe additional incidents of objectionable conduct which occurred during the period of March 2020 through December 2020;
• respondent's claim that the notices were confusing and hindered the ability to prepare a defense is unsupported and should be rejected as respondent's motion improperly relies on an attorney's affirmation without including an affidavit from respondent;
• respondent has cited no case law to support the argument that the failure to quote the entirety of Rent Stabilization Code § 2524.3(b) renders the notices fatally defective;
• the cases respondent cites for the proposition that the notices are fatally defective because they fail to assert that the primary purpose of respondent's actions was to harass petitioner or other occupants of the building are mostly post-trial decisions or otherwise distinguishable;
• both notices do reflect the effect of respondent's alleged conduct on others as they state that there was a "continuing course of conduct evidencing an unwarranted, unreasonable or unlawful use of the property to the annoyance, inconvenience, discomfort or damage to others, by interfering substantially with the comfort and safety of other residents at the building";
• an inference that respondent's conduct was intended to harass the owner or other tenants arises from the fact that, as stated in petitioner's agent's affidavit, respondent's behavior continued "even after repeatedly being informed to cease the alleged nuisance conduct".
The Relevant Lease Provisions
The predicate notices cite to five lease provisions which were allegedly violated by respondent's conduct; the relevant portions are the following:
Copies of the lease are attached to both sides’ papers.
¶ 15 — "Tenant's duty to obey laws and regulations": Under this section, the tenant "must comply with all laws, orders, rules, requests, and directions, of all governmental authorities, Landlord's insurers, Board of Fire Underwriters, or similar groups."
¶ 16(4) — "Tenant's default": Under ¶ 16 the landlord "must give Tenant written notice of default stating the type of default" of varying lengths in the event of any of five specified defaults which then "must be cured by Tenant within the time stated"; the fourth itemized default, which is the one cited in the predicate notices, requires ten days’ notice of: "Improper conduct by Tenant annoying other tenants".
¶ 20 — "Rules": ¶ 20 is a list of 12 rules "the tenant must comply" with, three of which are cited in the predicate notices:
• (1) — "The comfort or rights of other Tenants must not be interfered with. This means that annoying sounds, smells and lights are not allowed."
• (6) — "Dogs, cats or other pets are not allowed in the Apartment or Building."
• (7) — "Garbage disposal rules must be followed."
One of Respondent's arguments is based on subsection (5) of ¶ 16, which is not cited in the notices; this provision requires ten days’ notice of: "Failure to comply with any other term or Rule in the Lease".
DISCUSSION
On a motion to dismiss under CPLR R 3211(a)(7), "the 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." Guggenheimer v Ginzburg (43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 185, 372 N.E.2d 17, 20 [1977] ), quoted in Polonetsky v Better Homes Depot, Inc (97 N.Y.2d 46, 54, 735 N.Y.S.2d 479, 483, 760 N.E.2d 1274, 1278 [2001] ). The pleading is to be afforded a liberal construction, CPLR § 3026, its allegations are accepted as true and the plaintiff (or petitioner) is accorded the benefit of every possible favorable inference. 511 W 232nd Owners Corp v Jennifer Realty Co (98 N.Y.2d 144, 152, 746 N.Y.S.2d 131, 134, 773 N.E.2d 496, 499 [2002] ).
In a summary eviction proceeding, the "four corners" of the petition include any required predicate notices that are annexed and incorporated by reference. See CPLR R 3014. However, while pleadings are generally subject to liberal amendment under CPLR R 3025(b), Edenwald Contracting Co v New York (60 N.Y.2d 957, 471 N.Y.S.2d 55, 459 N.E.2d 164 [1983] ), and this rule applies to summary proceedings under CPLR Article 4, Jackson v New York City Housing Authority (88 Misc 2d 121, 122, 387 N.Y.S.2d 38, 39 [AT 1st Dep't 1976] ), predicate notices which are required conditions precedent to the proceeding are not amendable; if they are insufficient the proceeding must be dismissed, Chinatown Apts Inc v Chu Cho Lam (51 N.Y.2d 786, 412 N.E.2d 1312, 433 N.Y.S.2d 86 [1980] ), without prejudice, Kaycee W 113th St Corp v Diakoff (160 A.D.2d 573, 574, 554 N.Y.S.2d 216, 217 [1st Dep't 1990] ). Amending or supplementing the petition with post-notice allegations cannot operate retroactively to remedy a defective notice. Goodhue Residential Co v Lazansky (1 Misc 3d 907[A], 781 N.Y.S.2d 624 [Civ Ct NY Co 2003] ); Carriage Court Inn, Inc v Rains (138 Misc 2d 444, 446, 524 N.Y.S.2d 647, 649 [Civ Ct NY Co 1988] ).
New York State courts evaluate the sufficiency of predicate notices to cure a default under the lease and/or terminate the tenancy based on a standard of reasonableness "in view of all attendant circumstances". 542 Holding Corp v Prince Fashions, Inc (46 A.D.3d 309, 310, 848 N.Y.S.2d 37, 39 [1st Dep't 2007] ); Oxford Towers Co, LLC v Leites (41 A.D.3d 144, 837 N.Y.S.2d 131 [1st Dep't 2007] ); Hughes v Lenox Hill Hospital (226 A.D.2d 4, 17, 651 N.Y.S.2d 418, 427 [1st Dep't 1996], app dism'd , 90 N.Y.2d 829, 683 N.E.2d 17, 660 N.Y.S.2d 552 [1997] ). Predicate notices must "provide the necessary additional information to enable the tenant respondent to frame a defense to meet the tests of reasonableness and due process." Jewish Theological Seminary of America v Fitzer (258 A.D.2d 337, 338, 685 N.Y.S.2d 215 [1st Dep't 1999] ). While a predicate notice "need not lay bare a landlord's trial proof" and will be upheld where, taken as a whole, it is sufficient to advise the tenant of the claim, McGoldrick v DeCruz (195 Misc 2d 414, 758 N.Y.S.2d 756 [AT 1st Dep't 2003] ), broad and unparticularized allegations may be too vague, generic and conclusory to enable a tenant to prepare a defense. 128 Second Realty LLC v Dobrowolski (51 Misc 3d 147[A], 41 N.Y.S.3d 450 [AT 1st Dep't 2016] ); 69 EM LLC v Mejia (49 Misc 3d 152[A], 29 N.Y.S.3d 849 [AT 1st Dep't 2015] ).
A notice to cure a default must meet an additional requirement. As explained by the late Honorable Paul Feinman, then sitting in the Civil Court of the City of New York,
The purpose of a notice to cure is to apprise the tenant specifically of claimed defaults in its lease obligations and of the forfeiture and termination of the lease if the claimed default is not cured within a certain period of time ( Filmtrucks, Inc. v Express Indus. and Terminal Corp. , 127 A.D.2d 509, 510, 511 N.Y.S.2d 862 [1st Dept. 1987] ). Such notice must be clear, unambiguous and unequivocal ( Ellivkroy Realty Corp. v HDP 86 Sponsor Corp. , 162 A.D.2d 238, 556 N.Y.S.2d 339 [1st Dept. 1990] ). A notice to cure must be sufficiently specific to demonstrate what remedial action is required and which lease provision requires it (White Angel Really v Asian Bros. Corp. , 28 HCR 143A, NYLJ, March 13, 2000, at 31, col. 3 (Dist. Ct., Nassau County [Gartner, J.]).
Jamay Ltd P'ship v. Chung Wah Cheung Sang Funeral Corp (2002 NY Misc LEXIS 760 *4-5, 2002 WL 1461779, 2002 N.Y. Slip Op. 40284[U], 3 [Civ Ct NY Co 2002]).
A further layer of requirements for predicate notices in proceedings against rent regulated tenants is found in the applicable regulations; under Section 2524.2 of the Rent Stabilization Code (RSC) a termination notice must state with particularity both (1) "the ground under section 2524.3 or 2524.4 upon which the owner relies for removal or eviction of the tenant" and (2) "the facts necessary to establish the existence of such ground". See Domen Holding Co v Aranovich (1 N.Y.3d 117, 123, 769 N.Y.S.2d 785, 788-89, 802 N.E.2d 135, 138-39 [2003] ). Holdovers based upon alleged objectionable conduct are governed by RSC § 2524.3, entitled "Proceedings for eviction--wrongful acts of tenant"; relevant to this proceeding and cited in petitioner's predicate notices are subsections (a) and (b) which address the following "wrongful acts":
• (a) applies to a claim that the tenant "is violating a substantial obligation of his or her tenancy and has failed to cure such violation after written notice by the owner that the violations case within 10 days; or the tenant has willfully violated such an obligation inflicting serious and substantial injury upon the owner within the three-month period immediately prior to the commencement of the proceeding";
• (b) applies to a claim that the tenant "is committing or permitting a nuisance ; or is maliciously, or by reason of gross negligence, substantially damaging the housing accommodation; or the tenant engages in a persistent and continuing course of conduct evidencing an unwarrantable, unreasonable or unlawful use of the property to the annoyance, inconvenience, discomfort or damage of others, the primary purpose of which is intended to harass the owner or other tenants or occupants of the same or an adjacent building or structure by interfering substantially with their comfort or safety."
The predicate notices in this case are sufficient in certain respects: they clearly cite to two RSC sections and five lease provisions which provide grounds for eviction, and the factual allegations of objectionable conduct specify dates and times. Further, while the RSC only requires a ten-day opportunity to cure alleged violations of a "substantial obligation of his or her tenancy" under RSC § 2524.3(a), petitioner correctly also gave respondent a ten-day opportunity to cure the RSC § 2524.3(b) claim, required here because paragraph 16(4) of the parties’ lease mandates a ten-day notice and opportunity to cure any "[i]mproper conduct by Tenant annoying other tenants." When a lease requires an opportunity to correct defaults that fit under subsection (b) the lease provision controls. Minick v Park (217 A.D.2d 489, 490, 629 N.Y.S.2d 754, 755 [1st Dep't 1995] )("The statutory scheme simply establishes the minimum rights to be accorded tenants, and does not preclude a contract that gives a tenant greater rights"). The last paragraph of the notice to cure specifies the remedial action respondent needed to take to effectuate a cure and avoid termination of the tenancy: "permanently removing the dog from the subject premises, stopping all loitering, smoking and improper disposal of garbage". See Filmtrucks, Inc v Express Indus & Terminal Corp (127 A.D.2d 509, 511 N.Y.S.2d 862 [1st Dep't 1987] ); Chinatown Apartments, Inc v Chu Cho Lam, supra.
However, as an initial matter, petitioner in its termination notice narrowed the scope of its grounds for eviction to those arising out of the assertion that respondent repeatedly allowed "a strong odor of marijuana that permeated directly from your apartment and out into the common hallway on your floor". While the notice to cure listed three categories of objectionable conduct — harboring a dog, smoking "in and around the building" (plus complaints of loitering) and improper garbage disposal — it is only a specific type of smoking-related conduct — odors emanating from the apartment - that petitioner alleges continued beyond the ten-day cure period. The purpose of a notice to cure is "to specifically apprise the tenant of claimed defaults in its obligations under the lease". Filmtrucks, Inc v Express Indus & Terminal Corp (127 A.D.2d 509, 510, 511 N.Y.S.2d 862, 864 [1st Dep't 1987] ). A fair inference to be drawn from the absence from a termination notice of post-cure period allegations of objectionable conduct complained of in a prior notice to cure is that, in fact, that conduct has ceased. As "[e]very notice" to terminate a Rent Stabilized tenancy must state "the facts necessary to establish the existence" of the stated grounds for eviction, RSC § 2524.2(b), London Terrace Gardens, LP v Heller (40 Misc 3d 135[A], 975 N.Y.S.2d 710 [AT 1st Dep't 2009] ), the claims that can proceed in this case are limited to the post-cure period allegations, 2704 Univ Ave Realty Corp v Thompson (63 Misc 3d 1222[A], 114 N.Y.S.3d 823 [Civ Ct Bx Co 2019] ); 76 W 86th St Corp v Junas (55 Misc 3d 596, 45 N.Y.S.3d 921 [Civ Ct NY Co 2017] ).
Petitioner argues that it is permitted in opposition to a motion to dismiss to "submit affidavits to remedy defects in the complaint and preserve inartfully pleaded, but potentially meritorious claims". Mills v Gardner (106 A.D.3d 885, 886, 965 N.Y.S.2d 580, 582 [2nd Dep't 2013] ). Attorney's Affirm. in Opposition at ¶¶ 21, 53, 75-77, 107-108, 130-132, 159-161 and 188. However, it is black-letter law that the right to terminate a tenancy hinges on the service of an adequate notice, which cannot be cured retroactively. Chinatown Apartments, Inc v Chu Cho Lam, supra. While allegations of objectionable conduct occurring after the commencement of a proceeding may be presented at trial as evidence of ongoing nuisance, defects in predicate notices may not be cured by subsequent submissions. Domen Holding Co v Aranovich, supra (1 N.Y.3d at 124, 769 N.Y.S.2d at 789, 802 N.E.2d at 139 ). On the other side of this coin, respondent was not required to submit an affidavit in support of the motion to dismiss as argued by petitioner, Attorney's Affirm. in Opposition at ¶¶ 56-59, 82-84, 118, 133-134 and 162-163, as the motion is addressed to the face of the pleadings and based upon an objective standard of review: it is one of reasonableness "in view of all attendant circumstances". Oxford Towers Co, LLC v Leites, supra.
Accordingly, the remaining question to be answered is whether the predicate notices meet the tests of reasonableness and due process "in view of all attendant circumstances", Oxford Towers Co, LLC v Leites, supra, as to petitioner's grounds for eviction under RSC §§ 2524.3(a) and (b) based upon the alleged "strong odor of marijuana that permeated directly from your apartment and out into the common hallway on your floor". Before answering that question some observations about the structure and terminology of subdivisions (a) and (b) of RSC § 2524.3 must be noted: Each of these subdivisions contains its own set of separate subdivisions, all demarcated by a semi-colon followed by the word "or", thereby signifying that each such sub-subdivision is intended to be its own category. See Wymer v Nat'l Fuel Gas Distribution Corp (217 A.D.2d 920, 921, 629 N.Y.S.2d 929, 930 [4th Dep't 1995] ). Subdivision (a), which is generally referred to as covering "lease violations", is comprised of two such categories; subdivision (b), which is generally referred to as covering "nuisance" claims, has three, of which only the first uses the word "nuisance".
Comparing subdivisions (a) and (b) of RSC § 2524.3 with petitioner's predicate notices, which include sections tracking some of the RSC's language, it is evident that petitioner's subdivision (a) claims fall under that subdivision's first, not second, category and its subdivision (b) claims fall under that subdivision's third category, not its first or second. That is, the subdivision (a) claim is that respondent was "violating a substantial obligation" of the tenancy, without the elements of willfulness or infliction of serious and substantial injury upon the owner within the three-month period immediately prior to the commencement of the proceeding, and the subdivision (b) claim is that the tenant was engaging in "a persistent and continuing course of conduct" and was not, more broadly, "committing or permitting a nuisance" or, more narrowly, "maliciously, or by reason of gross negligence, substantially damaging the housing accommodation".
Petitioner's breach of lease/subdivision (a) claims fail to specify which cited lease provisions apply to which factual allegations of objectionable conduct. The tenant is entitled to "know what to defend against and how to interpose valid legal defenses", Carriage Court Inn, Inc v Rains (138 Misc 2d 444, 445, 524 N.Y.S.2d 647, 648 [Civ Ct NY Co 1988] ), and should not have to engage in conjecture. Which of the cited lease provisions are implicated by the alleged odors emanating from respondent's apartment, as opposed to the other factual claims which were not alleged to have continued beyond the cure period, cannot be ascertained with certainty from the notices.
The connection between ¶ 15 of the lease - "Tenant's duty to obey laws and regulations of all governmental authorities, Landlord's insurers, Board of Fire Underwriters, or similar groups" - and the alleged "strong odors of marijuana" emanating from respondent's apartment is only apparent from petitioner's opposition papers, which explain that, "When Respondent and/or Respondent's guests/occupants smoke in the common areas of the building or smoke in the subject apartment and that smoke emanates into the common areas of the building, this is a violation of the New York City Smoke Free Air Act." Affidavit in Opposition of Cathy Bellantone, sworn to April 12, 2021, at ¶ 11; Attorney Affirmation in Opposition at ¶¶ 181-184. The predicate notices themselves do not mention the New York City Smoke Free Air Act, NYC Admin. Code §§ 17-501 et seq., or any other "laws, orders, rules, requests, and directions" of governmental and similar authorities. Item #7 of the eleven factual allegations enumerated in the notices (third paragraph of the notice to cure; fourth paragraph of the termination notice) refers to a letter petitioner sent respondent dated October 8, 2019 "advising that you are not permitted to smoke in the common areas in or around the building." (Emphasis added.) However, not only does it require guesswork to connect ¶ 15 of the lease to factual allegation #7 in the notices, but the notices fail to state either what "laws and regulations" of what "governmental authorities" prohibit smoking in the common areas, see e.g., Marick Real Estate, LLC v Ramirez (11 Misc 3d 42, 44, 812 N.Y.S.2d 210, 211 [AT 2nd Jud Dept 2005] ), or how such unnamed "laws and regulations" apply to the complaint of "strong odors of marijuana".
That actual letter, attached to petitioner's opposition papers, goes further than the notices, but still does not mention the New York City Smoke Free Air Act; instead, it refers broadly to "New York City Law". Thus, even if that letter had been attached to the notices and petition, which it was not, it was an insufficient statement of the "laws, orders, rules, requests, and directions" allegedly breached by respondent.
As to lease ¶ 20(1), the "Rule" prohibiting "annoying sounds, smells and lights", while the notices allege "a strong odor of marijuana" in the common hallway on respondent's floor coming from the subject apartment, they do not allege that this odor is "annoying" anyone: Neither the neighbors in adjoining apartments nor other building residents nor petitioner's employees nor anyone else is asserted to have been annoyed by the alleged odor. The target of Rule 20(1) is certain types of behavior that are "annoying" to others; "sounds, smells and lights" which do not adversely affect anyone clearly could not constitute a rule violation which, if not cured, could support an eviction proceeding. A tenant's "smoking in the privacy of their own apartment" does not necessarily rise to the level of nuisance. Priceman Family, LLC v Kerrigan (70 Misc 3d 131[A], 135 N.Y.S.3d 762 [AT 2nd Dep't 2020] ).
As to the claim under RSC § 2524.3(b), it is not necessary to question why petitioner chose to proceed under this section's third clause, one of the two that does not actually include the word "nuisance", as parties to civil litigation are free to chart their own course. Mitchell v NY Hosp (61 N.Y.2d 208, 214, 473 N.Y.S.2d 148, 151, 461 N.E.2d 285, 288 [1984] ). However, strikingly absent from petitioner's predicate notices is that part of the third clause of RSC § 2524.3(b) which states, "the primary purpose of which is intended to harass the owner or other tenants or occupants of the same or an adjacent building or structure". The absence of the quoted language — as well as any factual allegations of conduct that might fit within that element of the claim — leaves the notices with an incomplete and misleading statement of the grounds upon which petitioner is proceeding and thereby undermines respondent's ability to prepare a defense to the claim.
Further fatally undermining the adequacy of the notice to cure is the language in the last sentence as to the required remedial actions: the way to cure the alleged violations was by "permanently removing the dog from the subject premises, stopping all loitering, smoking and improper disposal of garbage". As to smoking, a cure would be effectuated by "stopping all smoking". However, it is evident from the rest of the notice that it is not all smoking per se that constitutes a violation that must be cured to avoid eviction but rather smoking in the apartment that allowed a "strong odor of marijuana" to "permeate[ ] out into the common hallway on your floor". The warning in the notice to cure that respondent's tenancy would be terminated unless cured by "stopping all smoking" was inaccurate and insufficiently "clear, unambiguous and unequivocal in order to serve as the catalyst which terminates a leasehold." Ellivkroy Realty Corp v HDP 86 Sponsor Corp (162 A.D.2d 238, 238, 556 N.Y.S.2d 339, 340 [1st Dep't 1990] ); see also Jamay Ltd P'ship v Chung Wah Cheung Sang Funeral Corp, supra.
Petitioner's letter to respondent of October 8, 2019 provides more accurate guidance, as it states: "Inside your apartment, if you do smoke, you must not allow second hand smoke to escape from your apartment into the common areas of the building or into other apartments since your lease prohibits you from creating offensive odors or conditions. If you create a nuisance in the form of second hand smoke, and others complain about it to your landlord, it will be considered a breach of your lease and eviction proceedings will be initiated." However, that letter was neither attached to the notice to cure nor otherwise adequately incorporated by reference in the "four corners" of the petition which is the subject of this motion to dismiss.
CONCLUSION
Accordingly, for the reasons stated above, and measured against the test of reasonableness, Oxford Towers Co, LLC v Leites, supra , the predicate notices are deficient and respondent-tenant's motion to dismiss under CPLR R 3211(a)(7) for failure to state a cause of action is granted, without prejudice. This constitutes the Court's Decision and Order, a copy of which is being uploaded to NYSCEF.