Opinion
73603/09.
Decided February 8, 2010.
The petitioner was represented by: Tanya M. Owens, Esq., Kagan Lubic Lepper Lewis Gold Colbert, LLP.
The respondents were represented by: Domenick Napoletano, Esq.
The petitioner commenced this holdover proceeding on the ground that the respondent sublet the subject premises, located at 9801 Shore Road, Brooklyn, New York 11209, Apartment 1E, without the prior written approval of the Director of the petitioner corporation.
The Notice to Cure contained the following paragraph regarding respondent's violation of her proprietary lease:
The original Notice to Cure contained the name Lisa Mazza as sublessee/occupant which was changed to Lisa Mazza a/k/a Lisa Woodward in Amended Notice to Cure, both dated January 26, 2009.
Your default is a violation of paragraphs 14 and 15 of said proprietary lease in that you have sublet and/or permitted a person or persons, not authorized under paragraph 14 to occupy or use such apartment in violation of the Corporations's sublet policy and without complying with the terms and conditions and obtaining the necessary consents set forth in said paragraphs 14 and 15.
Neither the Notice to Cure, Amended Notice to Cure, Notice of Termination or the Petition contain a single factual statement as to when or how the respondent's conduct resulted in any violation(s).
The respondent now moves this Court for dismissal pursuant to CPLR § 3211(a)(7).
In opposition thereto, the petitioner's counsel submits her own affirmation "based on a review of the files maintained by [her] office and conversations with representatives of Shore Lane." There are no accompanying affidavits from anyone from the petitioner corporation who may have personal knowledge of the facts that form the basis for this proceeding.
Notwithstanding the respondent's assertion that the Court should treat this motion as "unopposed", there is nothing that the petitioner could have provided in an affidavit that can retroactively incorporate the missing factual elements to the one and only conclusory allegation in the predicate Notice(s) to Cure. A subsequent affidavit, which results solely because of a motion to dismiss, is too little too late to remedy the fatal defects in said Notice(s).
A notice to cure must inform the tenant as to how the lease was violated and the conduct required to prevent eviction. Westhampton Cabins Cabanas Owners Corp. v. Westhampton Bath Tennis Club Owners Corp. , 62 AD3d 987 (AD2nd Dept. 2009).
A recitation of the proscribed conduct is of greater importance than the mere reference to the provision of the lease that is alleged to have been violated, as it enables the tenant to understand the specific nature of his or her conduct that initiated the claim(s) and an ability to either cure or prepare a defense. See, 75 Monroe Street, LLC v. May, 2006 NY Slip Op 51238(U).
The petitioner argues that the precise issue before this Court was dealt with by the Appellate Division, 1st Department, in a decision that is favorable to the petitioner herein. The petitioner cites 445/86 Owners Corp. v. Haydon, 300 AD2d 87 (AD 1st Dept. 2002), for the proposition that there must be concurrent occupancy by the lessee-respondent and the respondent-undertenant to avoid an illegal sub-tenancy. However, as noted above, nowhere in the pleadings or predicate notices is there any factual statement as to what the respondent's living arrangement is vis-a-vis the subject premises and the under-tenant.
The fact that the respondent may have another residence is not proof-positive that there is no concurrent occupancy. Moreover, in Haydon, supra, the Appellate Court held that "the trial court erred in concluding that the sole, non-permitted occupancy by the tenant's mother-in-law constituted an illegal sublet." The court stated that the occupant was the tenant's licensee, not his tenant.
As this Court stated in its recent decision, Dorafield Realty Corp. v. Davis, 2010 NY SlipOp 50171(U), the occupation of the tenant's daughter does not rise to the level of an illegal sublet unless the petitioner can prove that the respondent no longer utilizes the subject premises as her primary residence and is collecting rent from her daughter. None of these allegations are set forth in the Notice(s) to Cure, which, in any event, can be cured pre or post-trial. See, Santorini Equities, Inc. v Picarra, NYLJ, 2/2/10, p. 43, col.1 (AD 1st Dept.); 235 West 71 Street, LLC v. Chehak, 16 AD3d 242; "[T]he occupancy of a close family member in an apartment during the absence of the tenant of record does not constitute an illegal sublet as a matter of law." 2500 Broadway, LLC v. Ward, NYLJ, 3/3/04, p. 19, col.1; PLWJ Realty Inc. v. Gonzalez, 285 AD2d 370 (AD 1st Dept.).
Even if the proof at trial demonstrated that the respondent's primary residence was not the subject premises, her tenancy cannot be terminated on those grounds in this proceeding.
The Court finds that the Notice(s) to Cure and the subsequent Notice of Termination and Petition, which incorporated by reference the Notice(s) to Cure, are defective and cannot form the basis for the prosecution of this matter.
Accordingly, the respondent's motion is granted and the Petition is hereby dismissed.
This constitutes the Decision and Order of the Court.