Opinion
52845/18
05-02-2019
2704 UNIVERSITY AVE. REALTY CORP., Petitioner, v. Raschid THOMPSON, "John Doe", "Jane Doe", Respondents.
For Respondent: Fernando Macias, Esq., Bronx Legal Services, 369 E. 148th Street, 2nd Floor, Bronx, NY 10455 For Petitioner: Todd Rothenberg, Esq., 271 North Avenue, Suite 115, New Rochelle, NY 10801
For Respondent: Fernando Macias, Esq., Bronx Legal Services, 369 E. 148th Street, 2nd Floor, Bronx, NY 10455
For Petitioner: Todd Rothenberg, Esq., 271 North Avenue, Suite 115, New Rochelle, NY 10801
Shorab Ibrahim, J.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of the motion filed by Respondent Raschid Thompson:
Papers Numbered
Notice of Motion, Affirmation, Affidavits and Exhibits annexed 1
Affirmation and Affidavit in Opposition 2
Replying Affirmations 3
After oral argument and upon the foregoing cited papers, the decision and order on this motion is as follows:
Petitioner 2704 University Ave. Realty Corp. ("Petitioner") commenced this summary holdover proceeding seeking to evict Raschid Thompson, "John Doe" and "Jane Doe" on the basis that Respondent Raschid Thompson, the tenant of record, has unlawfully sublet the premises without permission of the landlord pursuant to RPL § 226-b and § 2524.6 of the Rent Stabilization Code. Raschid Thompson ("Respondent") is the only appearing Respondent in this case. Respondent obtained counsel, Legal Services of New York City-Bronx, at the initial court date, October 17, 2018 through the "Universal Access" program. This matter was thereafter adjourned for motion practice.
Respondent moves for pre-answer dismissal pursuant to CPLR § 3211(a)(7) alleging that Petitioner has failed to state a cause of action. Specifically, Respondent argues the notice of termination fails to state with particularity any new facts to state that Respondent failed to cure the alleged sublet. Petitioner opposes the motion in all respects, alleging that it has stated a cause of action with enough particularity to withstand a CPLR § 3211(a)(7) motion.
Petitioner has alleged in its petition that the Respondent is the rent-stabilized tenant of 2704 University Avenue, Apt. 3A, Bronx, NY 10468. Petitioner commenced this action by issuance of a ten-day notice to cure dated August 10, 2018, mandating Respondent cure an alleged sublet by August 31, 2018. Petitioner thereafter terminated Respondent's tenancy by notice of termination dated September 3, 2018, asserting Respondent "failed to comply" with the notice to cure.
See Pet. Ex. A
The court notes that September 1, 2, and 3 2018 were a Saturday, Sunday and Labor Day, respectively.
The predicate notices state Respondent breached a substantial obligation of her tenancy, in violation of RSC § 2525.6 and RPL § 226-b and the lease between the parties, alleging she sublet the subject premises without permission of the landlord to a "John Doe" and/or "Jane Doe." Petitioner further alleges these individuals were in an altercation at the subject premises on July 9, 2018 and that investigation with "building staff" and "neighbors" revealed that Respondent had not been seen at the subject premises in a "number of months", and that "an unidentified John Doe and Jane Doe were observed to be the only persons coming and going to and from the subject premises."
See Pet. Ex. A
On a motion to dismiss the complaint pursuant to CPLR § 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. ( Leon v. Martinez , 84 NY2d 83, 87 [1994] ; Breytman v. Olinville Realty, LLC , 54 AD3d 703, 703-704, 864 NYS2d 70 [2nd Dept 2008] ). Thus, "a motion to dismiss made pursuant to CPLR § 3211 (a) (7) will fail if, taking all facts alleged as true and according them every possible inference favorable to the plaintiff, the complaint states in some recognizable form any cause of action known to our law." ( Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP , 38 AD3d 34, 38 [2nd Dept 2006] ; see Leon v. Martinez , 84 NY2d at 87-88 ).
With respect to the sufficiency of a predicate notice, "the appropriate test is one of reasonableness in view of the attendant circumstances." ( Hughes v. Lennox Hill Hosp. , 226 AD2d 4, 18, 651 NYS2d 418 [1st Dept 1996] ; See also Oxford Towers Co. LLC v. Leites , 41 AD3d 144 837 NYS2d 131 [1st Dept 2007] ). Thus, Courts are required to make a fact-specific analysis considering the totality of circumstances surrounding a particular case. Additionally, Rent Stabilization Code § 2524.2(b) requires that the predicate notice state the facts necessary to establish the existence of the ground upon which the owner relies for the removal of the tenant. (See 69 E.M. LLC v. Mejia , 49 Misc 3d 152[A], 29 NYS3d 849 [App Term, 1st Dept 2015] ; See also Barrett v. Silva , 18 Misc 3d 126(A) [App Term, 2d & 11th Jud Dist 2007] citing Berkeley Assoc. Co. v. Camlakides , 173 AD2d 193 [1st Dept 1991], aff'd 78 NY2d 1098 [1991] ). It is well settled that a deficient predicate notice is unamendable and requires dismissal. ( Chinatown Apts. v. Chu Cho Lam , 51 NY2d 786, 788 [1980] ).
"In a summary holdover proceeding to recover possession upon the ground of illegal sublet, the landlord is required to prove as a part of its prima facie case that a notice to cure was served and that the tenant failed to cure." ( Hudson Assoc. v. Benoit , 226 AD2d 196, 197, 640 NYS2d 540 [1st Dept 1996] ). Courts have recently dismissed cases based upon a notice of termination that did not state with particularity Petitioner's basis to claim that Respondent had not cured an alleged breach. (See 31-67 Astoria Corp. v. Landaira , 54 Misc 3d 131(A), 2017 NY Slip Op. 50034(U) [App Term, 2nd Dept 2017] (noting a one-day gap period between expiration of the notice to cure and issuance of a notice of termination and citing Hew-Berg Realty v. Mocerino , 163 Misc 2d 639, 622 NYS2d 187 [Civ Ct, Kings County 1994] ("A notice to cure is not a mere formality to a termination of tenancy."); 76 West 86th Corp. v. Junas 55 Misc 3d 596, 599-600, 45 NYS3d 921 [Civ Ct, New York County 2017) (dismissal of illegal sublet cause of action noting a two-day gap between notices—"In many cases, and perhaps most cases involving illegal sublet, a landlord will have to undertake further and more thorough investigation to determine whether the tenant has cured the conduct of which the landlord has complained."); CDC E. 105th St. Realty LP v. Mitchel , 2017 NYLJ LEXIS 1195 [Civ Ct, New York County 2017] ("This is a long term tenancy of thirty years in a rent stabilized apartment. A mere conclusory statement that respondent failed to cure 2 days after the cure deadline without stating facts upon which that conclusion is based renders the predicate notice fatally defective."); Webster Bldg A LLC v. Mitchner , 2018 NYLJ LEXIS 2623 [Civ Ct, Bronx County 2018]; 340 Clifton Pl. LLC v. Legette 2018 NYLJ LEXIS 2830 [Civ Ct, Kings County] (noting one-day gap period between notices—"In the instant case the notice of termination was dated only one day after the date by which respondent was required to cure. It does not contain any factual allegations in support of petitioner's conclusion that as of the next day after the respondent was required to cure, respondent continued to engage in the conduct complained of. Petitioner could not have had enough time to make any investigation as to whether respondent cured."); but see 1123 Realty LLC v. Treanor 62 Misc 3d 326, 335, 86 NYS3d 381 [Civ Ct, Kings County 2018] (distinguishing pet-holdover cause of action and six-day gap period between notices in partially denying Respondent's motion to dismiss, but granting relief on failure to give access grounds) ).
Here, by simply stating boilerplate language that Respondent "failed to comply" with its notice to cure, without alleging any additional facts after expiration of the cure period, Petitioner does not apprise Respondent with sufficient particularity of the facts which it believes establish its prima facie case. Moreover, the Court notes that the notice to cure expired only two days before a notice to terminate was issued , and that the gap period between the notices was a holiday weekend; indicating a lack of good faith in that little to no investigation at all took place to ascertain whether Respondent had cured the alleged sublet. An illegal sublet may be cured in several different fashions, and it is easily conceivable that an alleged sublessee could remain in the premises while the sublet had been cured, converting Petitioner's cause of action to a non-primary residence or licensee holdover. This reality makes the question as to whether Respondent cured an alleged sublet somewhat complex, requiring more investigation than a cursory visit the subject premises. (See e.g., 76 W. 86th St. Corp. v. Junas , 55 Misc 3d 596, 45 NYS3d 921 [Civ Ct, New York County 2017] ).
See Pet. Ex. A
See Pet. Ex. A
The court notes that the opposition to the motion does not allege than any investigation took place between expiration of the cure notice and issuance of the termination notice. In fact, Petitioner does not include any affidavit from someone with personal knowledge.
The Court notes that not every cause of action is similarly complex, and the same particularity may not be required of every notice of termination. It remains the "salutary purpose" of the regulatory scheme governing predicate notices "to discourage baseless eviction claims founded upon speculation and surmise, rather than concrete facts." ( London Terrace Gardens L.P. v. Heller , 40 Misc 3d 135(A), 975 NYS2d 710 [App Term, 1st Dept 2009] ; See also CDC East 105th Street Realty LP v. Mitchel, L & T 57435/16, NYLJ, May 10, 2017 at 39, 2017 NYLJ LEXIS 1195 (Civ Ct, New York County 2017); To require Petitioner to plead specific facts as to why and how it believes Respondent has not cured this particular alleged breach is well within that purpose. Petitioner's contention that the defect might be remedied by a bill of particulars is unavailing, as a vague and conclusory predicate notice cannot be remedied by later amendment or discovery tools. (See 128 Second Realty LLC v. Dobrowolksi , 51 Misc 3d 147(A), 2016 NY Slip Op 50772(U) [App Term, 1st Dept 2016] ).
CONCLUSION
For all of the foregoing, it is,
So Ordered, Respondent's motion to dismiss on these grounds is granted and the petition is dismissed.
This constitutes the decision and order of this Court.
SO ORDERED.