Opinion
Case No. 22050240 (053-22)
07-01-2022
MOHEGAN VISTA PROPERTIES LP, Petitioner (Landlord), v. Jesus MAZO and Elirim Mazo, Respondents (Tenants), and Jader Mazo, Louis Mazo, and Orlando Mazo, Respondents (Undertenants).
Glen P. Malia, Esq. 1011 Park Street, Suite 3, Peekskill, NY 10566, Attorney for the petitioner Mihaela Petrescu, Esq., Legal Services of the Hudson Valley, One Park Place, Suite 202, Peekskill, NY 10566, Attorney for the respondents
Glen P. Malia, Esq. 1011 Park Street, Suite 3, Peekskill, NY 10566, Attorney for the petitioner
Mihaela Petrescu, Esq., Legal Services of the Hudson Valley, One Park Place, Suite 202, Peekskill, NY 10566, Attorney for the respondents
Jeffrey W. Gasbarro, J. For the reasons that follow, this summary holdover proceeding is dismissed on the ground that the petitioner failed to serve the respondents with a valid, statutorily required 90-day notice prior to commencement.
FACTUAL AND PROCEDURAL BACKGROUND
On January 14, 2022, the petitioner served each of the respondents with a Notice of Termination dated December 31, 2021. The Notice of Termination advised the respondents that their tenancy was terminated effective March 31, 2022 and that, if they failed to vacate the premises on or before that date, an eviction proceeding would be commenced against them. On May 20, 2022, the petitioner commenced this summary holdover proceeding seeking possession of the subject apartment.
By notice of motion dated June 8, 2022, the respondents move to dismiss the petition on the ground that the petitioner failed to serve them with a proper 90-day notice of termination. In support of the motion, the respondent Eliriam Garcia s/h/a Elirim Mazo submits an affidavit in which she avers that she has resided in the subject apartment with her husband and children for 15 years. The respondents argue that the Notice of Termination served January 14, 2022 and giving them until only March 31, 2022 improperly sought to terminate their tenancy on fewer than 90 days’ notice.
In opposition, the petitioner argues that the respondents received in excess of 90 days of notice of this proceeding, as measured from January 14, 2022 to May 18, 2022, the date of service of the holdover petition upon the respondents. The petitioner also filed, without seeking leave, an amended petition correcting, inter alia, respondent Eliriam Garcia's name and adding her name to the caption. By a second notice of motion, the respondents move to dismiss the amended petition, arguing that the proposed amendments to the petition should be disallowed and reiterating their contention that the petitioner failed to serve them with a valid 90-day notice.
In opposition, the petitioner argues, inter alia, that the proposed amendments to the petition do not prejudice the respondents and that the respondents received more than 90 days’ notice prior to commencement of the proceeding. The petitioner submits a copy of the original lease agreement from 2006, noting that the tenants were listed therein as Jesus and Eliriam "Mazo" (not Eliriam "Garcia").
In reply, the respondents argue that the purported 90-day notice was invalid insofar as it directed the respondents to move out of the subject apartment by March 31, 2022, a date less than 90 days after they were served with the Notice of Termination.
ANALYSIS
Prior to the effective date of the Housing Stability and Tenant Protection Act of 2019 (the "HSTPA"), a landlord could terminate a month to month tenancy by notifying the tenant at least one month before the expiration of the term of the landlord's election to terminate (former Real Property Law § 232—b ).
The legislature altered that rule through the enactment of Real Property Law § 226-c, which pertains to notices of rent increases and, as relevant here, notices of non-renewal. Real Property Law § 226-c provides, in relevant part: "Whenever a landlord intends to offer to renew the tenancy of an occupant in a residential dwelling unit with a rent increase equal to or greater than five percent above the current rent, or the landlord does not intend to renew the tenancy , the landlord shall provide written notice" of varying lengths depending on the length of the tenancy ( Real Property Law § 226-c[1][a] [emphasis added]; see also Denis v. Fisher, 66 Misc.3d 433, 434, 115 N.Y.S.3d 650 [2019] ). "For tenancies of less than one year, a thirty-day notice is required; for tenancies/leases of at least one year but less than two years, a sixty-day notice is required; for tenancies/leases of at least two years, a ninety-day notice is required" ( 64 Van St., LLC v Cuevas , 67 Misc.3d 614, 616, 121 N.Y.S.3d 584 [2020], citing Real Property Law § 226-c[2] ). Here, the respondents were renting the subject apartment under a month-to-month tenancy and they resided there in excess of two years, entitling them to a 90-day notice pursuant to Real Property Law § 226-c(2)(d). The Notice of Termination served upon the respondents on January 14, 2022, directing them to vacate the premises "on or before March 31, 2022" was invalid, as it failed to afford the respondents the statutorily required 90 days of notice that their month-to-month tenancy was not being renewed.
The petitioner's contention that the invalid Notice of Termination is saved by a provision in Real Property Law § 226-c(1)(a) pertaining to untimely notices lacks merit. That provision states, in relevant part: "If the landlord fails to provide timely notice, the occupant's lawful tenancy shall continue under the existing terms of the tenancy from the date on which the landlord gave actual written notice until the notice period has expired" ( Real Property Law § 226-c[1][a] ). The Court is not aware of any case law interpreting this relatively new statutory provision. Nevertheless, a careful reading of the provision indicates that although it may act to save an untimely notice, it has no application to a durationally inadequate notice. Under the provision at issue, for example, a 90-day notice of rent increase or termination could be served less than 90 days prior to the expiration of a two year lease, but any rent increase or termination could not take effect until 90 days after notice is given. Such a hypothetical scenario assumes that the notice is durationally adequate, in that it actually affords the tenant 90 days to accept the rent increase or, in the case of a termination notice, 90 days to vacate. In contrast, the issue at bar relates not to the timeliness of the Notice of Termination, but to its durational inadequacy, in that the Notice of Termination improperly directed the respondents to vacate the subject apartment on less than 90 days of notice.
Insofar as "[c]ompliance with a statutory notice requirement represents a condition precedent to maintenance of a summary eviction proceeding, and the burden remains with the landlord to prove that element of its case" ( Mautner-Glick Corp. v Glazer , 148 A.D.3d 515, 515—516, 48 N.Y.S.3d 587 [2017] [internal quotation marks omitted]), the proceeding must be dismissed for failure to serve the respondents with a valid 90-day notice prior to commencement.
Accordingly, it is
ORDERED that the respondents’ motion to dismiss the petition is granted, the petition is denied, leave to serve the proposed amended petition is denied, and the proceeding is dismissed; and it is further
ORDERED that the respondents’ motion to dismiss the amended petition is denied as academic.
All other relief requested and not herein decided is denied. This constitutes the decision and order of the Court.