Opinion
34493/18
06-11-2019
KINGS THORN LLC, Petitioner v. Damien WALTERS, Respondent-Tenant, "John Doe" "Jane Doe", Respondents-Undertenants.
Sidrane, Schwartz-Sidrane, Perinbasekar & Littman, LLP, Attorneys for Petitioner, By: Arun Perinbasekar, Esq., 119 No. Park Avenue, Suite 201, Rockville Centre, NY 11570 Mobilization for Justice, Attorneys for Respondent, By: Gabriel L. Fonseca, Esq., 424 East 147th Street, 3rd Fl., Bronx, NY 10455
Sidrane, Schwartz-Sidrane, Perinbasekar & Littman, LLP, Attorneys for Petitioner, By: Arun Perinbasekar, Esq., 119 No. Park Avenue, Suite 201, Rockville Centre, NY 11570
Mobilization for Justice, Attorneys for Respondent, By: Gabriel L. Fonseca, Esq., 424 East 147th Street, 3rd Fl., Bronx, NY 10455
Shorab Ibrahim, 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 To Reargue 1
Answering Affirmation 2
Reply Affirmation in Support 3
After oral argument held on June 5, 2019, and upon the foregoing cited papers, the decision and order on this motion is as follows:
FACTUAL AND PROCEDURAL HISTORY
This is a holdover proceeding commenced by Kings Thorn LLC, ("Petitioner"), against Damien Walters, ("Respondent"). Petitioner seeks possession of 3525 Rochambeau Avenue Apt. 1C Bronx, NY 10467 ("the subject premises") pursuant to RSC § 2524.3(e) alleging that Respondent has breached a substantial obligation of his tenancy and lease agreement by unreasonably refusing Petitioner access to the subject premises for the purpose of making "necessary repairs."
See Respondent Motion to Reargue Ex. Q
In its notice to cure dated May 8, 2018 Petitioner alleges "The landlord requested access on 4/11/18 and 4/24/18 and the tenant has failed to provide access to the subject premises for the purpose of making repairs." Petitioner further alleges, in pertinent part ,
See Respondent Motion to Reargue Ex. Q
"this notice is sent to you to advise you that you have until May 29, 2018, a date which is no less than ten (10) days from the date of service of this notice upon you to cure the aforesaid violation within the subject premises. To cure said violations, you must immediately provide access for repairs to the landlord on May 29, 2018."
See Respondent Motion to Reargue Ex. Q
Petitioner's notice of termination dated May 31, 2018 alleges "Tenant failed to provide access to the landlord for the purpose of making necessary repairs on 4/11, 4/24 and 5/29."
See Respondent Motion to Reargue Ex. K.
It is further undisputed that a previous nonpayment proceeding between the same parties, Kings Thorn LLC v. Damian Walters L & T Index No. 73516/16 , was discontinued by two-attorney stipulation dated April 5, 2018 with a list of repairs and access dates on "4/17, 4/18 and 4/19."
See Respondent Affirmation in Reply Ex. A, Respondent's January 3, 2019 Motion to Dismiss.
Respondent's January 3, 2019 Motion to Dismiss
This matter first appeared on the court's calendar on July 17, 2018. Respondent thereafter obtained counsel with Mobilization for Justice and the case was adjourned several times for settlement negotiations, access dates, and/or for trial; and finally, for a motion schedule. In Respondent's motion to dismiss dated January 3, 2019, ("motion to dismiss"), he argued (1) the predicate notice of termination is impermissibly vague and conclusory and fails to state a cause of action pursuant to CPLR 3211(a)(7), RPAPL 741(4) and RSC 2524.2(b); and (2) the predicate notice to cure fails to adequately inform Respondent of how and when to cure the alleged violation in order to prevent eviction and fails to include adequate facts to support the alleged grounds for eviction.
See Respondent Affirmation in Reply Ex. A, Respondent's January 3, 2019 Motion to Dismiss.
Written opposition was filed by Petitioner, and oral argument was heard March 29, 2019. This court denied the motion by Decision and Order dated March 29, 2019, finding "The predicate notices are sufficiently detailed and clear so that Respondent knows why the tenancy is being terminated and so that he can formulate a defense."
See Respondent Motion to Reargue Ex. A.
Respondent's Motion to Reargue
Respondent now moves to reargue this court's March 29, 2019 Decision and Order pursuant to CPLR § 2221(a) and CPLR § 2221(d), arguing that this court misapprehended or overlooked the applicable standards of law governing the sufficiency of predicate notices under the Rent Stabilization Code, and overlooked the alleged deficiencies in the notice to cure.
Petitioner opposes the motion, first arguing that Respondent's motion is procedurally defective for his failure to annex his January 3, 2019 motion to dismiss to the motion to reargue as required by CPLR § 2214(c). Petitioner further argues that Respondent's motion to dismiss was correctly denied; arguing that the predicate notices are sufficiently detailed as required by RSC § 2524.2(b), and arguing that the notice to cure sufficiently apprises Respondent of the steps he needed to take to avoid litigation by asserting that access is requested on May 29, 2018.
See Petitioner's Affirmation in Opposition ¶8.
See Petitioner's Affirmation in Opposition ¶¶11, 38.
DISCUSSION
In determining a motion to reargue pursuant to CPLR 2221(a), the signing judge on the order from which review is requested shall decide to vacate, modify or stay the order if it is determined that the court "overlooked or misapprehended" "matters of fact or law." (See CPLR § 2221(d) ). The court may not consider new facts not previously raised. (See id ). A motion to reargue may not be used as a vehicle for an unsuccessful party to be heard again on the same issues previously decided, but rather it must seek to correct a mistake of fact or law made by the court. (See William P. Pahl Equipment Copr. v. Kassis , 182 AD2d 22, 27, 588 NYS2d 8 [1st Dept 1988] ; McGill v. Goldman , 261 AD2d 593, 594, 692 NYS2d 75 [2nd Dept 1999]).
First, Petitioner's argument that Respondent's motion should be denied for a procedural defect in failing to annex a copy of the motion to dismiss to his moving papers must be rejected. Notably, Respondent attaches his underlying motion to dismiss to the reply papers filed with the court. Courts often exercise discretion and move to the merits of an arguably procedurally defective motion in the interests of judicial economy, "completeness" and "finality." (See Washington Realty Owners LLC v. 260 Wash. St., LLC , 105 AD3d 675, 964 NYS2d 137 [1st Dept 2013], citing Pandian v. New York Health & Hosps. Corp. , 54 AD3d 590, 591, 863 NYS2d 668 [1st Dept 2008] (finding the record complete for purposes of summary judgment where pleadings were missing from moving papers but attached in reply)). Thus, the record is sufficiently complete to turn to the merits of the instant motion.
See Respondent Affirmation in Reply Ex. A, Respondent's January 3, 2019 Motion to Dismiss.
The court will first address Respondent's contention that the court misapprehended the standard of review in the context of a proceeding commenced pursuant to the Rent Stabilization Code, ("RSC" or "Code"); specifically, the Code's requirement that "every notice to a tenant to vacate or surrender possession of a housing accommodation shall state the ground under section 2524.3 or 2524.4 of the Part, upon which the owner relies for removal or eviction of the tenant, the facts necessary to establish the existence of such ground" (See RSC § 2524.2(b) [portions omitted] ).
Respondent correctly argues that there is an interplay between the caselaw surrounding the standard of review under CPLR § 3211(a)(7) generally, and the requirements mandated by the RSC. While controlling caselaw requires that the court "afford the pleadings the benefit of every possible favorable inference" and "determine whether the facts, as alleged, fit within any cognizable theory" in determining a motion to dismiss under CPLR § 3211(a)(7), (see Leon v. Martinez , 84 NY2d 83, 87, 614 NYS2d 972 [1994] ), the RSC adds an additional burden on landlords to plead "the facts necessary to establish the existence of such a ground." (RSC § 2524.2(b).) "In evaluating the facial sufficiency of a predicate notice in a summary eviction proceeding, the appropriate test is one of reasonableness in view of the attendant circumstances." ( Oxford Towers Co. LLC v. Leites , 41 AD3d 144, 837 NYS2d 131 [1st Dept 2007], citing Hughes v. Lenox Hill Hosp. , 226 AD2d 4, 18 [1996] ; See also First Ave. Props. v. McLaughlin , 53 Misc 3d 149(A), 2016 NY Slip Op 51658(U) [App Term, 1st Dept 2016] ). The test of reasonableness requires a court to view the notice considering the type proceeding commenced under the RSC and thus what particular facts are necessary to establish the existence of the specific grounds of eviction pleaded [emphasis added]. (See First Ave. Props. v. Mclaughlin , 53 Misc 3d 149(A) (where Appellate Term reversed granting of tenant's motion to dismiss a nonprimary residence action noting, "Tenant does not set forth any material allegations within the landlord's knowledge that it failed to include it in the notice.") citing Hughes v. Lenox Hill Hosp. , 226 AD2d at 18 )). Thus, the Court suggested that a showing of material facts within the landlord's knowledge and not contained in a predicate notice would tend to favor dismissal. Requiring that a landlord engage in a fact-specific investigation is meant to ensure the proceeding is not speculative or frivolous. (See London Terrace Gardens L.P. v. Heller , 40 Misc 3d 135(A), 2009 NY Slip Op 52858(U) [App Term, 1st Dept 2009] ).
Indeed, the allegations known to the landlord when commencing a nonprimary residence proceeding are necessarily limited to what the tenant has revealed, thereby restricting the universe of facts at the stage of pleading. To the contrary, the facts underlying the instant grounds for eviction, the tenant's failure to provide access to the subject premises for completion of necessary repairs, are well within the knowledge of Petitioner at the time a predicate notice is drafted. Thus, the court must evaluate the predicate notice considering this reality. Although there is no bright-line rule requiring a predicate notice include any specific facts as a matter of law, in cases where facts are readily accessible by Petitioner, courts have adjusted their evaluation of a predicate notice accordingly. (See 1123 Realty LLC v. Treanor , 62 Misc 3d 326, 335-336, 86 NYS3d 381 [Civ Ct, Kings County 2018] ("Here, the notice of termination is bereft of specific dates and times when access was allegedly sought by petitioner..., the notice of termination nevertheless fails to state whether an inspection appointment was agreed to and, if so, whether respondent failed to provide access on the agreed-upon date. Thus, respondent is entirely unable to frame a defense at trial due to the lack of particularity in either predicate notice."); See 291 Lenox Realty Co. v. Babel 19 Misc 3d 1145(A), 867 NYS2d 21 [Civ Ct, Kings County 2008] (noting that a predicate notice deficient of dates and times was defective where "conduct would be readily susceptible to identification by date and time."))
This court erred in finding the notice to cure was proper. In fact, it is entirely, impermissibly, conclusory. (See 772 East 168 Street v. Holmes , 61 Misc 3d 1206(A) at *3, 2018 NY Slip Op 51381(U) [Civ Ct, Bronx County 2018], citing Berkeley Associates Co v. Camlakides , 73 AD2d 193, 569 NYS2d 629 [1st Dept 1991] ).Though it lists two days (April 11, 2018 and April 24, 2018) Petitioner alleges it requested access for, the notice to cure does not state how such request was made or whether the tenant agreed. It does not state how Petitioner knows Respondent failed to provide access on the specified dates (i.e. Benjamin Spitz, our [former] manager appeared at the apartment on [specified arranged date] and Mr. Walters failed to provide access). It does not state the purpose of access other than to "making repairs." (Compare to RSC § 2524.3(e), "The tenant has unreasonably refused the owner access to the housing accommodation for the purpose of making necessary repairs or improvements required by law or authorized by the DHCR"). The notice to cure neither states that "necessary" repairs are needed, nor does it lay out facts or allege that Respondent "unreasonably" refused access. As Respondent posits, "there is a significant legal difference between a reasonable refusal of access and an unreasonable refusal. This is important because the parties had, in fact, arranged access for April 17, 18, and 19, 2018 in the prior non-payment proceeding. The notice to cure fails to mention these dates although it was after those stipulated dates had passed. Importantly, Respondent avers he was home on April 17th, 18th and 19th, 2018 to provide access.
The May 31, 2019 Notice of Termination, however, states the "tenant failed to provide access to the landlord for the purpose of making necessary repairs on" [emphasis added]. Alas, the Notice of Termination does not state why repairs are necessary.
¶ 9 of December 3, 2018 Walters affidavit.
The court further notes that Petitioner failed to produce any proof that the April 11, 2018 and April 24, 2018 access dates were properly arranged. The January 31, 2019 Benjamin Spitz affidavit refers to access letters dated March 27, 2018 and April 12, 2018, however no such letters are attached to any of the submissions despite being referred to as exhibits ‘C’ and ‘D’ in the Spitz affidavit. (See 308 Hull LLC v. Castellani , 39 Misc 3d 1234(A) at *5, 2013 NY SLIP Op 50881(U) [Civ Ct, Bronx County 2013] (access letters shed light on whether access was reasonably requested and/or reasonable refused)). Additionally, Mr. Spitz' affidavit raises questions whether anyone from Petitioner's office appeared at the subject apartment on April 11 and April 24, 2018. For instance, Mr. Spitz avers he personally went to the premises on at least six (6) occasions, none of those occasions happened to be April 11 or April 24, 2018. Petitioner did not provide any further affidavits.
¶ 6 & 7.
Here, it is undisputed that a stipulation of discontinuance in a prior proceeding involving the same parties included a list of repairs and access dates. It is further undisputed that the stipulation was executed just over month prior to the date of the notice to cure. Finally, it is undisputed that the access dates listed in the notice to cure do not include any of the access dates agreed to in the parties' stipulation of discontinuance. While it is certainly possible the parties chose to rearrange access dates because of unforeseen conflicts in scheduling, this information is necessary to support these grounds for eviction in light of the attendant circumstances. (See Hughes v. Lenox Hill Hosp , 226 AD2d at 18 ). This information is readily accessible to Petitioner and its omission from the predicate notice herein is unreasonable. ( Oxford Towers Co., LLC v. Leites , 41 AD3d 144, 837 NYS2d 131 [1st Dept 2007] ; see First Ave. Props. v. Mclaughlin , 53 Misc 3d 149(A) ; 297 Lenox Realty Co. v. Babel , 19 Misc 3d 1145[A], 2008 NY Slip Op 51168[U] ). It is well settled that a deficient predicate notice is unamendable and requires dismissal of the proceeding. ( Chinatown Apts. v. Chu Cho Lam , 51 NY2d 786, 788, 433 NYS2d 86 [1980] ).
Moreover, contrary to Petitioner's argument, the court may properly consider the parties' previous stipulation in determining a motion to dismiss without conversion to summary judgment where, as here, the claims are "flatly contradicted by documentary evidence." (See Roberts v. Pollack , 92 AD2d 440, 444, 461 NYS2d 272 [1st Dept 1983] ("On a motion addressed to the sufficiency of a complaint the facts pleaded are presumed to be true and accorded every favorable inference. On the other hand, allegations consisting of bare legal conclusions, as well as factual claims either inherently incredible or flatly contradicted by documentary evidence are not entitled to such consideration." [citations omitted] ). Petitioner does not contest the validity of the parties' April 4, 2018 stipulation of discontinuance.
Thus, Respondent's motion for re-argument is granted. Upon reconsideration, the court grants the motion to dismiss due to the improper notice to cure. As such, the court need not reach Respondent's other arguments, but notes to the extent that the Notice to Terminate relies on conclusory claims made in the Notice to Cure, it is defective.
The court notes Respondent raised these arguments in the underlying motion to dismiss. See Respondent's Affirmation in Reply, Ex. A, Respondent's January 3, 2019 Motion to Dismiss.
CONCLUSION
Based on the foregoing, it is So Ordered, Respondent's Motion for Re-argument is granted, the court's March 29, 2019 Decision and Order is vacated, Respondent's motion to dismiss is granted, and the proceeding is dismissed without prejudice.
SO ORDERED,