Opinion
LT–004215–17NA
06-27-2018
CLENT REALTY CO., L.P., Petitioner, v. Mark LEVINE and Joy Smith, "John Doe" and "Jane Doe," Respondents.
Schneider Buchel LLP, 666 Old Country Road, Suite 412, Garden City, New York 11530, (516) 393–5555, attorneys for Petitioner. Citak & Citak, 270 Madison Avenue, Suite 1203, New York, NY 10016, (212) 759–9585, attorneys for Respondents.
Schneider Buchel LLP, 666 Old Country Road, Suite 412, Garden City, New York 11530, (516) 393–5555, attorneys for Petitioner.
Citak & Citak, 270 Madison Avenue, Suite 1203, New York, NY 10016, (212) 759–9585, attorneys for Respondents.
Scott Fairgrieve, J.
Petitioner has commenced this holdover proceeding against Respondents Mark Levine and Joy Smith, to evict them from 5 Clent Road, Apt. 2J, Great Neck, New York. The Respondents have alleged to "have sublet the premises on a short term basis in violation of ETPA 2507.7 and RPL 226–b," see paragraph 4 of the first cause of action of the Petition.
It is further alleged that the use of the premises as a "hotel" violated Nassau County fire prevention ordinances and constituted an illegal use under the Village of Great Neck Plaza code. See paragraph 5 and 6 of the first cause of action of the Petition.
The Petition alleges that Respondents were served with the Notice of Default on or about July 19, 2017. The Notice, dated July 19, 2017, provides that the Respondents violated the Lease due to an illegal sublease:
"PLEASE TAKE NOTICE that it has come to the attention of Clent Realty Co., L.P. ("Landlord") that you are in violation of law and have rendered landlord subject to civil penalties by reason permitted unauthorized transient occupant(s) to reside in the premises known as 5 Clent Road, Apt. 2J, Great Neck, New York 11021 ("Premises"), for hire and without the express written consent of the Landlord. Specifically, you subleased and/or permitted unidentified occupants to contract for and briefly reside in the Premises for payment through AirBNB.com or otherwise. This is a breach and violation of your lease ("Lease"), Real Property Law 226–b, which is made expressly applicable to your Lease by 2505.7 of the Emergency Tenant Protection Act ("ETPA"),
(a) Housing accommodations subject to these regulations may be sublet in accordance with the provisions, and subject to the limitations, of section 226–b of the Real Property Law provided the additional provisions of this section are complied with and provided further that the prime tenant can establish that at all times he has maintained the housing accommodation as his primary residence and intends to occupy it as such at the expiration of the sublease."
The Notice states that the Respondents violated ETPA § 2504.2 (c) and (d), and Great Neck Plaza Code § 225–90.1.
The Notice further claims that Respondents' actions are incurable and/or willful:
"PLEASE TAKE NOTICE, that your actions are incurable [ ETPA § 2504.1(d)(2)(I) ] or are a willful violation your obligations as tenants inflicting serious and substantial injury on the Landlord or the property. ETPA § 2504.1(d)(2)(iii). As such, for the foregoing reasons, the term of your tenancy will expire on July 31, 2017 and all of your right, title, and interest in the Lease and the Premises shall thereupon wholly cease and expire and you will be required to quit and surrender the apartment to the Landlord."
Respondents' answer, dated September 29, 2017, denies the allegations of the Petition. Several affirmative defenses are asserted, including failure to serve prerequisite notices, failure of Petitioner to act in good faith, and Respondents' actions not constituting a substantial violation of the lease.
Respondents move for summary judgment supported by the Affidavit of Respondent Mark Levine, dated January 31, 2018, executed in the State of Florida. Mr. Levine states that Joy Smith is his wife. Respondent Mark Levine signed the Lease for Apt. 2J on September 20, 1996, and has resided in the apartment for more than 21 years. He recently purchased a boat which he hopes to moor in Great Neck or Port Washington. An Extension Lease was signed for the period from November 1, 2016 to October 31, 2018.
Respondent Mark Levine states that, in the past, there were two prior attempts to evict them as follows:
(a) unsuccessful attempt to evict based upon lack of primary residence;
(b) unsuccessful 2005 proceeding to evict for illegal subletting. Respondents note that Petitioner served a Notice to Cure in the 2005 proceeding.
Mr. Levine attacks the present proceeding because the sublet lasted only four (4) nights and ended seven (7) months prior to this proceeding being instituted.
Mr. Levine further states that his business endeavors require him to travel extensively throughout the U.S., Caribbean, and the Netherlands. Respondent Mark Levine advises that presently he is involved in advising small Caribbean nations on economic development.
Respondent Mark Levine also states that he has extensive history of using Airbnb since 2011 for his employment travels. Respondent Mark Levine rents the two (2) condominiums that he owns in Florida to customers of Airbnb. He also uses Airbnb to assist an acquaintance located in Aruba.
Mark Levine acknowledges that he subleased the apartment to Victoria Gartstein aka Viktoria Gartstein (hereinafter "Viktoria Gartstein"), in 2014–2015, for which he received Petitioner's permission to sublease the apartment.
Mark Levine states that he listed the apartment on the Airbnb platform in December of 2016. Respondent Mark Levine was going through marital difficulties and work pressures at this time. Respondent Mark Levine writes that he decided to rent for four (4) nights from December 30, 2016 to January 3, 2017, to earn extra money "to deal with the financial pressures of mounting expenses."
Mark Levine states that he received the gross sum of $345 for the Airbnb rental, which was less then the monthly rent of $939.00.
Mark Levine alleges that he did not rent the apartment to anyone else based upon an Airbnb listing.
Mark Levine acknowledges that he continued to list the property on the Airbnb platform for several months after January 3, 2017. Respondent Mark Levine urges that Nassau County has no law regulating listings on Airbnb.
Mark Levine states that no notice to cure was served upon him or his wife Joy Smith. Respondent Mark Levine writes that in 2005, a notice to cure was served regarding an alleged illegal sublet.
At bar is a letter, dated July 19, 2017, terminating the Lease, which was mailed on July 27, 2017, and not delivered until July 28, 2017.
The Respondents' motion for summary judgment is further supported by the Affirmation of counsel, Donald L. Citak, dated January 31, 2018. Attorney Citak argues that Petitioner failed to comply with paragraph 17 of the Lease concerning notices to cure and default. Paragraph 17 states:
"17. Default
(1) You default under the Lease if You act in any of the following ways:
(a) You fail to carry out any agreement or provision of this Lease;
(b) You or another occupant of the Apartment behaves in an objectionable manner;
(c) You do not take possession or move into the Apartment 15 days after the beginning of this Lease;
(d) You and other legal occupants of the Apartment move out permanently before this Lease ends;
If You do default in any one of these ways, other than a default in the agreement to pay rent, Owner may serve You with a written notice to stop or correct the specified default within 10 days. You must then either stop or correct the default within 10 days, or, if You need more than 10 days, You must begin to correct the default within 10 days and continue to do all that is necessary to correct the default as soon as possible.
(2) If You do not stop or begin to correct a default within 10 days, Owner may give You a second written notice that the Lease will end six days after the date the second written notice is sent to You. At the end of the 6–day period, this Lease will end, You then must move out of the Apartment. Even though this Lease ends, You will remain liable to Owner for unpaid rent up to the end of this Lease, the value of your occupancy, if any, after the Lease ends, and damages caused to Owner after that time as stated in Article 18.
(3) If You do not pay your rent when this Lease requires after a personal demand for rent has been made, or within three days after a statutory written demand for rent has been made, or if the Lease ends, Owner may do the following: (a) enter the apartment and retake possession of it if You have moved out; or (b) go to court and ask that You and all other occupants in the Apartment be compelled to move out.
Once the Lease has been ended, whether because of default or otherwise, You give up any right You might otherwise have to reinstate or renew the Lease."
Mr. Citak points out that a 10 day notice to cure was served. Respondents contend that the Lease requires a six (6) days notice of a default. Respondents cite Rent Stabilization Code at 9 NYCRR § 2524.2(c)(2) for the rule that a seven (7) day notice of termination must be served. It is argued that since Petitioner overnighted the termination notice on July 27, 2017 for delivery on July 28, 2017, with a termination date of July 31, 2017, Petitioner's actions constitute a failure to comply with the Lease (requiring six [6] days notice) and Residential Stabilization Code § 2524.2(c)(2) (requiring seven [7] days notice).
Respondents also attack the alleged fact that the termination notice was not served upon both Mark Levine and Joy Smith. Counsel states that both names appear on the Lease, which is Exhibit 1, of their motion for summary judgment. However, a review of Exhibit 1 by the court demonstrates that the Lease, dated September 30, 1996, only bears the name of Mark Levine. In fact, the name of Joy Smith appears only on page 6 of the Residential Lease Form of Apartment, where it is crossed out and initialed.
Respondents argue that in 2005 a notice to cure was served based upon an illegal sublet case involving the same parties. Therefore, Respondents maintain that a notice to cure was also required in the instant proceeding.
Petitioner cross-moves for summary judgment for a judgment of possession, warrant of eviction, and a money judgment for use and occupancy. The cross motion is supported by the Affidavit of Thomas Flood, sworn to February 21, 2018. Mr. Flood is the vice president of Richland Management Company, Inc., which manages the property for Petitioner. Mr. Flood has been the property manager since 1999. The subject property is registered with the Division of Housing and Community Renewal No. 628046, and is subject "to the Emergency Tenant Protection Act (ETPA)" also known as the Rent Stabilization Law. The Petitioner agrees that the Lease was first entered into with Respondent Mark Levine in 1996. The Lease was renewed by both Respondents on September 27, 2016, for a 2–year period from November 1, 2016 through October 31, 2018. Attached to the moving papers is the renewal with the 11 page ETPA Standard Lease Addenda which contains the following clause concerning subletting:
"9. SUBLETTING AND ASSIGNMENT:
A tenant has the right to sublet his/her apartment, even if subletting is prohibited in the lease, provided that the tenant complies strictly with the provisions of Real Property Law Section 226–b. Tenants who do not comply with these requirements may be subject to eviction proceedings. Compliance with Section 226–b is not determined by DHCR, but by a court of competent jurisdiction. If a tenant in occupancy under a renewal lease sublets his/her apartment, the owner may charge the tenant, the sublet allowance provided by the Rent Guidelines Board. This charge may be passed on to the sub-tenant. However, upon termination of the sublease, the Legal Regulated Rent shall revert to the Legal Regulated Rent without the sublet allowance. The rent increase is the allowance provided by the Rent Guidelines Board available when the tenant's renewal lease commenced, and it takes effect when the subletting takes place. If a tenant in occupancy under a vacancy lease sublets, the owner is not entitled to any rent increase during the subletting."
According to Mr. Flood, the legally regulated monthly rent for the apartment is $939.72 or a daily rate of $30.90. Respondents allegedly charged the Airbnb users $160.00 per day or a five hundred (500%) percent increase over the $30.90 rate paid by Respondents.
Mr. Flood posits that the fair market value for the apartment is between $1,800.00 and $2,000.00 per month.
The Respondents subletted the apartment for a one year period from October 22, 2014 through October 21, 2015 to Viktoria Gartstein and thus it is contended were "well aware of the requirements to sublease the apartment." This sublease was consented to by Mr. Flood.
Mr. Flood states in or about March of 2017, as he was viewing the Airbnb website, he recognized that Respondent Mark Levine had listed the apartment for rental. The Airbnb webpages, obtained during discovery, indicate under the heading "All Reservation History," that there were two rentals which he describes in his affidavit:
"14. The Airbnb webpages provided by Respondents during discovery in this matter, (see Exhibit ‘E’ page "Respondent 103') under the heading ‘All Reservation History,’ shows two (2) rentals as follows:
(I) December 30, 2016—January 3, 2017—Elizabeth Bauman—$356 total
Elizabeth Bauman left the following review ‘The host was out of town but communicated many times with us ...’
(ii) April 2–5, 2017—Noreen B—$605 total.
15. The second rental was by Noreen Bruen, a person working on our behalf. As indicated in her attached Affidavit, she did arrange for the sublease, but then it was rejected. Further, Respondent continued to list the Apartment through May, 2017."
Mr. Flood notes that Respondent Mark Levine demonstrated intent to rent the apartment on July 10, 2017 when Mark Levine had reached out to a prospective tenant (Noreen Bruen) for subletting for the summer/fall of 2017.
Mr. Flood argues that the illegal subletting harms Petitioner as follows:
"22. However, the illegal Airbnb rental of a rent stabilized apartment harms Petitioner, because Respondent is receiving the benefit of a rent which is fifty (50%) percent less than the current market value of this apartment, thus depriving Petitioner of the benefit of market value rent. Moreover, Respondents' act of subletting to strangers from all over the world, without any vetting or screening process, places the Petitioner and the other tenants at great risk of harm."
The Affidavit of Noreen Bruen, sworn to February 9, 2018, lays out the scenario of the attempted rental by her through Airbnb:
"2. In April, 2017, I went onto the Airbnb website and saw a listing for Great Neck, New York for a one bedroom apartment. I attempted to rent the apartment which is 5 Clent Road, Apt. 2J, Great Neck, New York through Airbnb. I was required to book a three-night minimum. I submitted my request to rent it for the period of April 2–5, 2017. The price was listed as $160.00. The total cost for four (4) days would have been $640.00. Airbnb charges a small percent, usually six (6%) percent, so the Respondents would have received $605.00. Initially my request was accepted, but then it was rejected.
3. Thereafter, the apartment was still listed on Airbnb. I continued to comment through Airbnb website that I was interested in subleasing the apartment until approximately May, 2017, but was unable to communicate with ‘Mark’.
4. Unexpectedly, and quite out-of-the-blue, on July 10, 2017, I received a telephone message from Mark Levine from his phone number (484) 365–2107, that his apartment was available anytime that summer/fall of 2017. I responded through Airbnb and I was interested, but he did not respond thereafter."
Respondent Mark Levine submits his Supplemental Affidavit, sworn to on March 19, 2018. Mr. Levine states that he received an email on March 18, 2018, from Elizabeth Bauman, the person who had sublet his apartment from December 30, 2016 through January 3, 2017. Mr. Levine offered to return the $345.00 which he charged her. Respondent Mark Levine acknowledges that the sublet to Elizabeth Bauman "was a mistake and should not have done without the Landlord's permission...."
Decision of the Court
9 NYCRR § 2507.7. Subletting; assignment states, in relevant part:
"(a) Housing accommodations subject to these regulations may be sublet in accordance with the provisions, and subject to the limitations, of section 226–b of the Real Property Law provided the additional provisions of this section are
complied with and provided further that the prime tenant can establish that at all times he has maintained the housing accommodation as his primary residence and intends to occupy it as such at the expiration of the sublease.
(b) The rental charged to the subtenant shall not exceed the legal regulated rent plus a 10–percent surcharge payable to the prime tenant if the housing accommodation is sublet with the prime tenant's furniture. Where a prime tenant violates the provisions of this subdivision, the subtenant shall be entitled to damages as provided in section 2506.1 of this Title.
* * *
(e) An owner may terminate the tenancy of a tenant who sublets or assigns contrary to the terms of this section, but no action or proceeding based upon the nonprimary residence of a tenant may be commenced prior to the expiration date of his lease."
There is no dispute that Respondent Mark Levine violated the above quoted regulation by renting his apartment to Elizabeth Bauman for the period of December 30, 2016 through January 3, 2017 for a price of $345.00. Respondents' daily rent is $30.90 per day ($939.72 x 12 months divided by 365). The amount received by Respondent Mark Levine for the Airbnb rental is well above the daily rent he pays for renting the rent stabilized apartment.
There is no question that Respondent Mark Levine did not obtain the consent of the Petitioner for the rental to Elizabeth Bauman. The evidence demonstrates that Respondent Mark Levine knew that he had to obtain the consent of the Petitioner for a sublet as shown by the fact that Respondent Mark Levine obtained the consent of Petitioner for the one year sublet to Viktoria Gartstein from October 22, 2014 through October 21, 2015. The amount charged by Respondent Mark Levine to Elizabeth Bauman was well in excess of the 10% surcharge allowed by 9 NYCRR § 2507.7.
The evidence shows that Respondent Mark Levine had an extensive history of using Airbnb for his apartment in New York and elsewhere. The statement of Noreen Bruen, that she was going to sublet Respondent Mark Levine's apartment for the period of April 2—5, 2017, for a price of $640.00 or $160.00 per day, is uncontested. Importantly, Respondent Mark Levine does not refute the statement of Noreen Bruen in his Supplemental Affidavit. However, this rental never occurred.
In Gruber v. Anastas , 100 A.D.3d 829, 954 N.Y.S.2d 568 (2nd Dept. 2012), the petitioner sought to recover possession of a rent stabilized apartment due to respondents' overcharging the subtenants in violation of Rent Stabilization Code (9 NYCRR) 2525(6). The Court upheld eviction of the respondents. The Court further ruled that no notice to cure needed to be served because the respondents imposed a substantial surcharge in violation of the lease:
"Although, under Rent Stabilization Code (9 NYCRR) § 2504.1(d)(1), a landlord normally must give the tenant notice of the violation and a specified amount of time to cure the illegal sublet (see also Rent Stabilization Code [9 NYCRR] § 2524.3[a] ), under the circumstances of this case, including the fact that the appellants imposed a substantial surcharge, the appellants should not be permitted to cure the lease violation (see Matter of 151–155 Atl. Ave. v. Pendry , 308 A.D.2d 543, 543—544, 764 N.Y.S.2d 852 ; see also BLF Realty Holding Corp. v. Kasher , 299 A.D.2d 87, 91, 747 N.Y.S.2d 457 )."
In 151–155 Atlantic, Inc. v. Pendry , 308 A.D.2d 543, 764 N.Y.S.2d 852 (2nd Dept. 2003), the Civil Court authorized removal of the rent stabilized tenant because the tenant breached the anti-subletting provision of the lease and overcharged the subtenants for use of the apartment. The Appellate Term reversed and stayed the eviction because the tenant cured her breach by removing the subtenants from the apartment.
The Second Department reversed and held that the tenant had no right to cure and therefore a notice to cure was not necessary. The Court further stated that the tenant's actions undermined the integrity of the rent stabilization system and therefore the tenant could be evicted:
"Under RPAPL 753(4), a tenant has 10 days to cure the breach of a lease provision. While the statute authorizes the Civil Court to impose a permanent injunction in favor of the tenant, precluding forfeiture of the lease upon the tenant's curing the breach within the 10—day period (see Post v. 120 East End Ave. Corp. , 62 N.Y.2d 19, 475 N.Y.S.2d 821, 464 N.E.2d 125 ), RPAPL 753(4) is not to be mechanically applied to defeat the purpose of the rent stabilization provisions. ‘The integrity of the rent stabilization scheme is obviously undermined if tenants, who themselves are the beneficiaries of regulated rentals, are free to sublease their apartments at market levels and thereby collect the profits which are denied the main landlord’ ( Continental Towers Ltd. Partnership v. Freuman , 128 Misc.2d 680, 681, 494 N.Y.S.2d 595 ; see also BLF Realty Holding Corp. v. Kasher , 299 A.D.2d 87, 747 N.Y.S.2d 457 ). Where, as here, there has been a substantial surcharge by the tenant, the tenant should not be permitted to cure the lease violation (see BLF Realty Holding Corp. v. Kasher, supra ; Continental Towers Ltd. Partnership v. Freuman, supra ). The conduct of a profiteering rent-stabilized tenant ‘is not to be condoned by permitting the tenant to remain after the fraud has been found out’ ( Continental Towers Ltd. Partnership v. Freuman, supra at 682, 494 N.Y.S.2d 595 )."
In BLF Realty Holding Corp. v. Kasher , 299 A.D.2d 87, 747 N.Y.S.2d 457 (1st Dept. 2002), the Court extended the anti-profiteering rationale to leasing to subtenants by loft tenants reasoning as follows:
"There is a significant body of law that denies the protection of rent regulation to tenants who utilize their apartments for commercial exploitation. Rent-stabilized tenants who charge a subtenant more than the legal required rent are subject to lease termination. (See Rent Stabilization Code § 2525.6[b] and [f]; § 2524.3[h] ; Continental Towers Ltd. Partnership v. Freuman , 128 Misc.2d 680, 494 N.Y.S.2d 595 [App. Term 1st Dept. [1985]].) Specifically, Rent Stabilization Code § 2525.6(b) prohibits a tenant from charging a subtenant more than the legal rent, plus a 10% surcharge if the apartment is fully furnished. Where the tenant is in violation of this prohibition, Rent Stabilization Code § 2525.6(f) entitles the owner to terminate the tenancy. Rent Stabilization Code § 2525.7(b) also prohibits a stabilized tenant from charging a roommate in excess of the roommate's proportional share of the stabilized rent. Rent profiteering in the latter circumstance may also entitle a landlord to maintain a holdover proceeding against the stabilized tenant. (See Ram 1 LLC v. Mazzola , 2001 WL 1682829 [App.Term 1st Dept. [2001]].) Where there has been a substantial surcharge, the tenant cannot cure the lease violation. ( Continental Towers Ltd. Partnership v. Freuman , 128 Misc.2d at 681, 494 N.Y.S.2d 595 ).
In the case of rent control, while a tenant may not accept rent from a subtenant in excess of the lawful rent (see NY City Rent and Eviction Regulations, 9 NYCRR § 2205.1 [a], City Rent and Rehabilitation Law, Administrative Code of City of NY § 26—412[a] ), no provision exists entitling the landlord to commence an eviction proceeding for profiteering in such circumstances. Notwithstanding, courts have extended the rule that profiteering tenants who sublease their apartments forfeit their rights and are subject to eviction as tenants of rent-controlled apartments. (See Hurst v. Miske , 133 Misc.2d 362, 505 N.Y.S.2d 984 ). Applying the holding of Continental Towers Ltd. Partnership v. Freuman , 128 Misc.2d 680, supra , 494 N.Y.S.2d 595 the Hurst court noted, ‘This rationale should apply equally if not more to a rent-controlled tenant, who profits from her rental accommodation, since rent-controlled units are more stringently controlled than rent-stabilized units and ... the rent-controlled tenant derives a higher benefit in rent regulation than that of a rent-stabilized tenant.’ ( Hurst v. Miske , 133 Misc.2d at 365, 505 N.Y.S.2d 984 )."
Continental Towers Ltd. Partnership v. Freuman , 128 Misc.2d 680, 494 N.Y.S.2d 595 (App. Term 1st Dept. 1985) explains that the integrity of the rent stabilization system is undermined by a tenant who commercializes his rent stabilized apartment by illegally subletting. This constitutes a fraud. Eviction is justified.
In 335–7 LLC v. Steele , 53 Misc.3d 150(A), 52 N.Y.S.3d 248 (Table), 2016 WL 6990049, 2016 N.Y. Slip Op. 51689 (U) (App. Term 1st Dept. 2016), the tenant used Airbnb to sublet her rent stabilized apartment which was an incurable violation, and eviction was warranted. The tenant's actions constituted a direct attack on the integrity of the rent stabilization system.
See also Goldstein v. Lipetz , 150 A.D.3d 562, 53 N.Y.S.3d 296 (1st Dept. 2017), where the tenant used Airbnb to sublet her apartment to 93 different customers for 338 days for a period of 18 months far in excess of the rent stabilized rent. The foregoing warranted eviction.
The above cases justify immediate eviction of the Respondents here. There is no question that Respondent Mark Levine willfully violated the Lease and applicable law by using Airbnb to sublet his apartment to Elizabeth Bauman. His actions commercialized his apartment and attacked the integrity of the rent stabilized system. Respondent Mark Levine did not obtain the consent of the Petitioner. Respondent Mark Levine knew that he had to obtain the consent of the Petitioner to sublet to Elizabeth Bauman, as demonstrated by his prior obtaining of Petitioner's consent to sublet to Viktoria Gartstein in 2014. Respondent Mark Levine kept the listing on the Airbnb website for months. Respondent Mark Levine does not deny the assertions of Noreen Bruen that she was contacted by Mr. Levine to sublet his apartment for rates that violated the rent structure of the rent stabilized system. The foregoing facts constitute a substantial violation and warrant eviction.
The notice issue raised by Respondents is without merit. There is no obligation to provide a notice to cure, because the conduct of Respondent Mark Levine constitutes an incurable violation of the Lease based upon the above-cited case law. The Court in Graham Court Owners Corp. v. Taylor , 49 Misc.3d 7, 16 N.Y.S.3d 892 (App. Term 1st Dept. 2015) made the clear distinction that cases of illegal sublets involving rent gouging or profiteering in reference thereto, constitute an incurable ground for eviction for which no notice is required:
"The mere allegation that the sublet exceeded the two-year limit set forth in the Code (see RSC § 2526.6[c] ) does not excuse the service of a notice to cure. Unlike situations involving rent gouging or profiteering in relation to a sublet, conduct which undermines the integrity of the rent stabilization system and constitutes an incurable ground for eviction (see Matter of 151–155 Atl. Ave. v. Pendry , 308 A.D.2d 543, 764 N.Y.S.2d 852 [2003] ; BLF Realty Holding Corp. v. Kasher , 299 A.D.2d 87, 91, 747 N.Y.S.2d 457 [2002], lv. dismissed 100 N.Y.2d 535, 762 N.Y.S.2d 876, 793 N.E.2d 413 [2003] ; Continental Towers Ltd. Partnership v. Freuman , 128 Misc.2d 680, 494 N.Y.S.2d 595 [1985] ), the extended duration of the sublease is not, without more, a factor sufficient to deprive the tenant of the right to cure."
9 NYCRR § 2504.1 restrictions or removal of tenant does not require a notice to cure where the breach by its nature is not curable or is a willful violation "inflicting serious and substantial injury on the landlord or the property of the landlord." See specifically, § 2504.1(d)(2) (I) and (iii). There is no notice period in either 9 NYCRR § 2504.1 or 9 NYCRR § 2505.7 requiring a specific number of days that a specific notice must be served to terminate the lease.
Paragraph 17 of the subject Lease entitled "DEFAULT" does not apply to the factual circumstances of this case because the notice provisions providing for a notice to cure and notice of default only apply to situations where the default can be cured. In the case at bar, Respondent Mark Levine's breach is incurable under New York State Law, and therefore, no 10 day notice to cure followed by a 6 day notice to terminate was required.
Conclusion
Respondents' motion for summary judgment dismissing the Petition is denied. Petitioner's cross motion for summary judgment is granted. Petitioner may proceed to evict the Respondents forthwith with no stay of the warrant.