31-67 Astoria Corp. v. Landaira

Full title: 31-67 Astoria Corp., Appellant, v. Martha Landaira, Respondent, and "John…

Court: SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Date published: Jan 5, 2017

2017 N.Y. Slip Op. 50034 (N.Y. App. Term 2017)

52 N.Y.S.3d 248

Opinion

2015-1257 Q C

01-05-2017

31-67 Astoria Corp., Appellant, v. Martha Landaira, Respondent, and "John Doe" and "Jane Doe", Undertenants.

PESCE, P.J., SOLOMON and ELLIOT, JJ.

PRESENT: :

Appeal from an order of the Civil Court of the City of New York, Queens County (John S. Lansden, J.), entered April 17, 2015. The order, insofar as appealed from as limited by the brief, granted tenant's cross motion for summary judgment dismissing the petition in a holdover summary proceeding.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

Landlord commenced this holdover proceeding pursuant to Rent Stabilization Code § 2524.3 (a), (b) and (e), alleging that tenant had breached a substantial obligation of the tenancy, had permitted a nuisance in the premises and had denied landlord access to make necessary repairs. Prior to the commencement of the proceeding, landlord had served tenant with a notice to cure these alleged defaults and, subsequently, a notice to terminate. The notice to terminate, served one day after the cure period had expired, did not allege that tenant had failed to cure the alleged defaults specified in the notice to cure.

A termination notice that fails to set forth the facts upon which the landlord relies for eviction is defective (see Oxford Towers Co. v Leites, 41 AD3d 144 [2007]; Dowarp Realty Co. v Acevedo, NYLJ, Apr. 3, 1990, at 26, col 2 [App Term, 1st Dept 1990]). Here, the termination notice was defective because it failed to allege that the defaults specified in the notice to cure, which were curable, had not been cured during the cure period (see Hew-Burg Realty v Mocerino, 163 Misc 2d 639 [Civ Ct, Kings County 1994]). A violation removed during the cure period will not support the termination of a lease based on the tenant's alleged default (see One E. 8th St. Corp. v Third Brevoort Corp., 38 AD2d 524 [1971]).

We have considered landlord's other arguments and find them to be without merit.Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Solomon and Elliot, JJ., concur Decision Date: January 05, 2017