Opinion
2006-61 Q C.
Decided July 30, 2008.
Appeal from a final judgment of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered January 5, 2006. The final judgment, after a nonjury trial, awarded landlord possession and the sum of $2,800 in a holdover summary proceeding.
Final judgment reversed without costs and petition dismissed.
PRESENT: GOLIA, J.P., RIOS and STEINHARDT, JJ.
In this holdover proceeding, the rent-stabilized tenant was served with a notice to cure, which alleged, as relevant to this appeal:
"You are in violation of paragraph 12 of your lease in that you have sublet the premises without the prior written consent of the landlord to persons whose names are unknown to the landlord who are using the premises for non-residential purposes; to wit, psychic and palm readings, contrary to the building certificate of occupancy in violation of paragraph[s] 1 and 15 of the lease."
At trial, the court permitted landlord to withdraw so much of this portion of the notice as alleged a subletting and allowed landlord to proceed only on a claim of nonresidential use. After landlord introduced proof tending to show that tenant used the premises for nonresidential purposes, the court found in landlord's favor and awarded him judgment.
In our view, the notice cannot be parsed as was done by the trial court. It is elementary that the predicate notice cannot be amended ( Chinatown Apts. v Chu Cho Lam, 51 NY2d 786) and that landlord is "bound by the notice served" ( One E. 8th St. Corp. v Third Brevoort Corp., 38 AD2d 524; see Spinale v 10 W. 66th St. Corp., 210 AD2d 85; see also Domen Holding Co. v Aranovich, 302 AD2d 132, 134, mod on other grounds 1 NY3d 117). The notice advised tenant only to cure the nonresidential use in conjunction with the subletting, and it is not reasonable under the attendant circumstances ( Oxford Towers Co. LLC v Leites, 41 AD3d 144) to read the notice as alleging separate nonresidential use and subletting claims. Accordingly, the final judgment is reversed and the petition dismissed without prejudice to landlord commencing a new proceeding upon proper papers.
Golia, J.P., Rios and Steinhardt, JJ., concur.