Opinion
L & T 65624/17
03-29-2018
CHRIST PENTACOSTAL TEMPLE INC., Petitioner, v. Augustine COPELAND, Respondent–Tenant, Natalia Copeland, John Doe and Jane Doe, Respondent–Undertenants.
Petitioner's counsel: Daniels Norelli Cecere & Tavel, P.C., 272 Duffy Avenue, Hicksville, NY 11801 Respondent's counsel: Queens Legal Services, Attn: Ernie Mui, Staff Attorney, 89–00 Sutphin Boulevard, 5th Fl., Jamaica, NY 11435
Petitioner's counsel: Daniels Norelli Cecere & Tavel, P.C., 272 Duffy Avenue, Hicksville, NY 11801
Respondent's counsel: Queens Legal Services, Attn: Ernie Mui, Staff Attorney, 89–00 Sutphin Boulevard, 5th Fl., Jamaica, NY 11435
Joel R. Kullas, J.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion for summary judgment and for further relief:
Papers Numbered
Notice of motion and affidavits annexed 1
Order to Show Cause and affidavits annexed
Answering affidavits 2
Replying affirmation 3
Supplemental affirmation
Exhibits.
Stipulations
Other
Petitioner commenced this summary holdover proceeding pursuant to RPAPL Sec. 713(7) after having allegedly terminated respondents' occupancy in 157–03 Brickenhoff Avenue, Apt. 1 Floor, Jamaica, NY 11433 (the "subject premises"). Respondent appeared by counsel and moves for dismissal ( CPLR 3211(a)(2) and/or (7) or alternatively, leave to serve an amended answer ( CPLR 3025 ) and summary judgment ( CPLR 3212 ).
"(O)n a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure 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, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory." ( Siracusa v. Sager , 105 AD3d 937, 938 [2nd Dept 2013] quoting Breytman v. Olinville Realty, LLC , 54 AD3d 703, 703–704.)
In reviewing the sufficiency of the predicate, the law requires that a predicate notice be reasonable under the attendant circumstances. Hughes v. Lenox Hill Hospital , 226 AD2d 4, 18 (1st Dept. 1996). In particular, RSC 2524.2(b) requires the termination notice to state "the facts necessary to establish the existence" of a ground for eviction. The notice must offer specific facts so as to provide the tenants with sufficient notice of the case against them. Kaycee West 113th Street Corp. v. Diakoff. 160 AD2d 573, 574 (1st Dept. 1990).
Petitioner's predicate notice is confusing and ambiguous. It reads as follows, in pertinent part:
PLEASE TAKE FURTHER NOTICE, that the licenses of Natalia Copeland, "JOHN DOE" and "JANE DOE" as above named expired:
A. Upon the demise of Augustine Copeland, the tenant of record on or about December 2015;
B. Upon the natural expiration of the month to month oral lease agreement.
C. Upon the failure of Natalia Copeland, "JOHN DOE" and "JANE DOE," to provide documentation to meet the requirements of the City Rent Control Law by not co-occupying the subject apartment as a "family member" of the tenant of record for a period of time sufficient to qualify for succession rights. First, the notice is addressed, in part, to Augustine Copeland, despite the claim in the predicate that she died in or about December 2015. Second, it alleges both that respondent Natalia Copeland was a licensee of the tenant of record and a month to month tenant pursuant to an oral lease agreement. Third, it states that Natalia Copeland failed to provide documentation establishing her rights to succession pursuant to the City Rent Control Law despite the fact that the petition states the premises are not subject to rent regulation. (Notice of Motion, Exhibit L, Para. 10.) The petition lists Augustine Copeland as the respondent-tenant, (Id , Exhibit L, Para. 3) and says her term expired June 30, 2017 (Id. , Para. 5.) Yet, the petition also says respondent's tenancy was terminated pursuant to the annexed notice of termination. This conflicts with the allegation that the tenant of record died and respondent, Natalia Copeland, is a licensee. Thus, the predicate is internally contradictory as well as confusing when read in conjunction with the petition. A predicate notice must be clear, unambiguous and unequivocal. Ellivkroy Realty Corp. v. HDP 86 Sponsor Corp. , 162 AD2d 238 (1st Dept 1990). Defects in the predicate notices are not subject to cure. See Chinatown Apartments, Inc v. Chu Cho Lam , 51 NY2d 786 (1980). Furthermore, the petition cannot plead inconsistent theories without, at minimum, an explanation as to why it does not know respondent's status. See City of NY v. Bullock , 159 Misc 2d 716, aff'd 164 Misc 2d 1052 (App Term, 2nd & 11th Jud Dists, 1995). Since the predicate is confusing and ambiguous—and rendered even more so when read in conjunction with the petition—the petition, including the predicate, is defective and petitioner has not afforded respondent the ability to properly formulate a defense.
Based on the foregoing, the motion to dismiss is granted and the petition is dismissed without prejudice. The court does not reach any other issue.
This constitutes the decision and order of the court.