Opinion
September 3, 1999
Richard Sussman, New York City, for respondent.
Green Cohen, P. C., New York City (Michael R. Cohen of counsel), for petitioner.
Decision and Order
In Capital Holding Co. v. Stavrolakes, 242 A.D.2d 240 (1st Dep't 1997), aff'd, 92 N.Y.2d 1007 (1998), the court examined the extent to which N.Y. Real Prop. Law (R.P.L.) § 235-f limits roommates in residential tenancies. In this case, the court determines the extent to which a residential lease may limit roommates, consistent with the statute, and construes the limitation on roommates imposed by a standard lease provision that refers to the statute.
While R.P.L. § 235-f allows a lease to limit roommates to one, the statute does not contain any prohibition or presumption against more than one. Therefore the standard lease provision at issue, which limits the number of roommates "in accordance with" R.P.L. § 235-f, permits more than one roommate.
I. BACKGROUND
Petitioner landlord commenced this holdover proceeding to recover possession of Apartment 3A at 251 West 91st Street, New York County, following respondent's admission, in a prior nonpayment proceeding, that he shared the premises with three roommates. Petitioner alleges that these roommates violate a provision of the parties' lease, which states at ¶ 1:
You shall use the Apartment for living purposes only. The Apartment may be occupied by the tenant or tenants named above and by the immediate family of the tenant or tenants and by occupants as defined in and only in accordance with Real Property Law § 235-f.
Aff. of William E. Leavitt, Ex. D. See also id., Ex. A ¶ 5. Respondent moves to dismiss the petition based on (1) a defective notice to cure, (2) failure to state a cause of action, and (3) waiver of the lease provision. As discussed below, the court grants the motion based on the petition's failure to state a cause of action.
II. THE NOTICE TO CURE
The purpose of a notice to cure is to apprise the tenant of "the facts upon which the action is predicated," to enable him "to properly raise issues and sufficiently defend the accusations," Cosmopolitan Broadcasting Corp. v. Miranda, 143 Misc.2d 1, 2-3 (Civ.Ct. N.Y. Co. 1989) (citing Giannini v. Stuart, 6 A.D.2d 418 (1st Dep't 1958)), or "prepare to move out of the subject premises." Steinmetz v. Barnett, 155 Misc.2d 98, 101 (Civ.Ct. N.Y. Co. 1992). See Ellivkroy Realty Corp. v. HDP 86 Sponsor Corp., 162 A.D.2d 238 (1st Dep't 1990). The notice to cure in this case satisfies this standard.
The notice claims that respondent violated ¶ 1 of the lease, limiting use and occupancy to the tenant and his immediate family and to "occupants" as defined in R.P.L. § 235-f. The notice further states that the violation is based on respondent's alleged admission that he lives with three roommates named Tom Debose, Fransesca Contreras, and Jennifer Holly.
Together these statements can only mean either that the three roommates are not "occupants" as defined in R.P.L. § 235-f or, if they are, that the total occupants exceed the number allowed by the lease. The nature of the violation and the facts on which the violation is based are explicitly set forth. See SAAB Enters. v. Bell, 198 A.D.2d 342, 343 (2d Dep't 1993).
III. THE CLAIM UNDER THE LEASE AND R.P.L. § 235-f
Respondent moves to dismiss the petition for failure to state a cause of action, CPLR § 3211 (a) (7), on the ground that the facts alleged do not establish a lease violation as a matter of law. In assessing this claim, the court must "determine whether, 'accepting as true the factual averments of the complaint, plaintiff can succeed upon any reasonable view of the facts stated.'" Campaign for Fiscal Equity v. State of New York, 86 N.Y.2d 307, 318 (1995) (citation omitted).
Petitioner contends that the alleged violation is not of R.P.L. § 235-f itself, but of a lease provision tracking the language of the statute. Nevertheless, if the statute protects the conduct alleged, then it does not constitute a breach of the lease, because the lease cannot prohibit conduct protected by the statute. "Any provision of a lease or rental agreement purporting to waive a provision of this section is null and void." R.P.L. § 235-f(7). Especially since the lease provision explicitly invokes the § 235-f definition of "occupant," whether a violation occurred depends on the statute's interpretation and application. Therefore petitioner states a cause of action only if the named roommates are not "occupants" as defined by R.P.L. § 235-f or if their number exceeds the occupancy limitations of the lease.
Section 235-f (1) (b) defines an "occupant" as "a person, other than a tenant or a member of a tenant's immediate family, occupying a premises with the consent of the tenant or tenants." Respondent does not dispute that his three roommates are neither tenants nor members of his immediate family, nor that they occupy the premises with the tenant and with his consent. Section 235-f(1), on its face, imposes no limit on the number of occupants so long as they are unrelated persons living with the tenant and with his consent. Construed in accordance with § 235-f (1), then, the lease permits the occupancy alleged as the basis of this proceeding.
Even if the lease provision must be construed in accordance with all the subsections of R.P.L. § 235-f, not just the definition of "occupant" in § 235-f (1), the result is the same. Section 235-f (3) provides:
Any lease or rental agreement for residential premises entered into by one tenant shall be construed to permit occupancy by the tenant, immediate family of the tenant, one additional occupant, and dependent children of the occupant provided that the tenant or the tenant's spouse occupies the premises as his primary residence.
If the landlord intended the lease to limit the number of occupants to one, that construction is not "in and only in accordance with" this or any other provision of the statute.
In light of the legislation's permissive language and remedial purpose "to protect tenants and occupants, not landlords," the statute did not create "an affirmative right of action for landlords to enforce occupancy limitations." Capital Holding Co. v. Stavrolakes, 242 A.D.2d at 242-43. Accord Schneller v. Moed, 128 Misc.2d 885, 887 (Civ.Ct. N.Y. Co. 1985). See R.P.L. § 235-f (2), (6), and (9); Costa v. David Frankel Realty Inc., N YL.J., Oct. 23, 1996, at 33 (Sup.Ct. N.Y. Co.); Barbizon Owners Corp. v. Chudick, 159 Misc.2d 1023, 1027 (Civ.Ct. Queens Co. 1994). The provision concerning the number of occupants is not a prohibition against a tenant having more than one unrelated roommate. R.P.L. § 235-f (3). Nor does the statute elsewhere contain any limit or presumption as to the number of occupants.Capital Holding Co. v. Stavrolakes, 242 A.D.2d at 243. See alsoBarbizon Owners v. Chudick, 159 Misc.2d at 1027. It "merely limited a landlord's ability to restrict them." Capital Holding Co. v. Stavrolakes, 242 A.D.2d at 244. Accord Vidod Realty Co. v. Calvin, 147 Misc.2d 488, 490 (Civ.Ct. Bronx Co. 1989).
Although R.P.L. § 235-f did not create any statutory limitation on occupancy, the statute did not render unenforceable lease provisions establishing "reasonable occupancy limitations" consistent with the protections afforded by the statute. Capital Holding Co. v. Stavrolakes, 242 A.D.2d at 244. Thus, if the lease expressly limited the number of "occupants" as defined by R.P.L. § 235-f (1) (b) to one, such a clause ought to be enforceable under § 235-f (3) if the occupancy limitation is otherwise "reasonable." Capital Holding Co. v. Stavrolakes, 242 A.D.2d at 244. See 430 Realty Co. v. Baird, N.Y.L.J., May 14, 1997, at 29 (Civ.Ct. N.Y. Co.).
Here, however, the lease does not contain any such express limit. While limiting the occupants to one may be permissible consistent with R.P.L. § 235-f, a greater number is equally "in accordance with" the entire statute. See 61 Jane Street Assoc. v. Kroll, 102 A.D.2d 751, 753 (1st Dep't 1984). Particularly since the lease in this case provides for "occupants," not "an occupant" or "one occupant," the provision must be interpreted to permit more than one occupant.
IV. CONCLUSION
Accepting petitioner's allegations as true, no reasonable view of those facts states a cause of action under the lease interpreted according to the applicable statutory provisions. Therefore the court grants respondent's motion to dismiss on this ground. In light of this determination, the court need not address respondent's remaining grounds for dismissal.