Opinion
3372.
Decided April 15, 2004.
Order, Supreme Court, New York County (Leland DeGrasse, J.), entered March 20, 2003, which granted defendant's motion insofar as it sought dismissal of the complaint pursuant to CPLR 3211(a)(7) but denied the motion to the extent that tenant shareholder sought an award of attorneys' fees, and denied plaintiff's cross motion to amend the complaint, unanimously affirmed, without costs.
Friend Reiskind, New York (Edwin M. Reiskind, Jr. of counsel), for appellant-respondent.
Lambert Shackman, PLLC, New York (Thomas C. Lambert of counsel), for respondent-appellant.
Before: Buckley, P.J., Tom, Sullivan, Williams, JJ.
The motion court properly considered defendant's motion to dismiss as against the proferred amended complaint ( see Sage Realty Corp. v. Proskauer Rose LLP, 251 A.D.2d 35, 38).
Plaintiff residential cooperative corporation's 1995 letter to defendant tenant shareholder, advanced as proof that plaintiff residential cooperative corporation duly notified defendant tenant shareholder of its intention to terminate her proprietary lease, did not meet the termination notice requirements set forth in paragraph 31(g) of the proprietary lease. The letter did not reference the proprietary lease, much less specify the lease provision violated by defendant, and did not warn defendant that the lease was terminable upon her failure to cure ( see Chinatown Apts., Inc. v. Chu Cho Lam, 51 N.Y.2d 786; Filmtrucks, Inc. v. Express Indus. Terminal Corp., 127 A.D.2d 509, 510). The letter was also defective as a termination notice since it was not from plaintiff or an attorney named in the lease, but from an attorney with whom defendant had not previously dealt ( see Siegel v. Kentucky Fried Chicken of Long Is., Inc., 67 N.Y.2d 792, 794). Accordingly, since the notice required as a condition of terminating the proprietary lease was not provided, this action seeking, inter alia, to recover possession of defendant's apartment upon the ground that her proprietary lease had been validly terminated for objectionable conduct was properly dismissed.
While plaintiff's action is technically defective, the record provides strong indication that its attempt to terminate defendant's lease was not without substantive basis and that defendant's success in this action may be little more than nominal. Accordingly, an award of attorneys' fees to defendant, pursuant to either 22 NYCRR § 130-1.1 or Real Property Law § 234, would not be appropriate.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.