Opinion
066516/17
07-16-2018
ML 1188 GRAND CONCOURSE LLC, Petitioner, v. Ashfaqur Rahman KHAN, Mohammed Baduizzaqman, Respondent-Tenants, and Richard Roe, Mary Roe, John Doe, and Jane Doe, Respondent-Undertenants.
Lazarus, Karp & Kalamotousakis, LLP, Charles J. Siegel, Esq., for the Petitioner Bronx Legal Services, Sara E. Smith, Esq., for the Respondent
Lazarus, Karp & Kalamotousakis, LLP, Charles J. Siegel, Esq., for the Petitioner
Bronx Legal Services, Sara E. Smith, Esq., for the Respondent
Karen May Bacdayan, J.
Recitation, as required by C.P.L.R. § 2219 (a), of the papers considered in review of this motion.
Motion Seq. 1
Papers Numbered
Notice of Motion, Affidavit, Exhibits A-G 1
Answering Affidavits 2
Replying Affidavits 3
Motion Seq. 2
Notice of Motion, Affidavit, Exhibits A-G 1
Answering Affidavits 2
Replying Affidavits 3
Upon the foregoing cited papers, the decision and order on this motion is as follows:
BACKGROUND AND PROCEDURAL HISTORY
This is a holdover proceeding against rent-stabilized tenants on the basis that Respondents are illegally subletting the subject premises, permitting the premises to be overcrowded in violation of the lease, and causing the need for the landlord to make repairs to the apartment. The Notice to Cure gave Respondent until October 16, 2017 to cure the violations cited therein. The Notice of Termination dated October 26, 2017 purported to terminate the Respondents' tenancy and lease as of November 9, 2017. A Notice of Petition and Petition were served on Respondent on November 29, 2017. Respondent Ashfaqur Rahman Khan, represented by counsel, moved to dismiss the proceeding pursuant to C.P.L.R. § 3211 (a) (7) on the grounds that the predicate notices to cure and to terminate the tenancy are fatally insufficient and do not establish a cause of action. The motion was fully briefed by both sides.
On the argument date of May 3, 2018, the parties brought another issue to the Court's attention: Petitioner offered Respondent a renewal lease which Respondent signed on April 2, 2018 and returned to Petitioner along with an additional security deposit. Thereafter, Respondent requested the renewal lease be revised to reflect a two-year term, and Petitioner returned a revised renewal lease to Respondent dated April 24, 2018.
At a conference on May 3, 2018, the parties suggested that the Court first consider this intervening and potentially dispositive issue prior to ruling on the original, fully briefed motion. The proceeding was adjourned for the parties to adhere to a briefing schedule and for oral argument. Respondent served and filed a second Motion to Dismiss the Petition in which it argues that by offering and fully executing a binding renewal lease, Petitioner has reinstated the Respondent's tenancy which it terminated on November 9, 2017, thus requiring dismissal of this proceeding. In opposition, Petitioner argues that because the renewal lease was offered and executed during litigation and prior to the entry of a final judgment and issuance of a warrant, the Notice of Termination has not been vitiated, and the tenancy has not been reinstated.
The motions are consolidated for the purposes of this proceeding. For the reasons stated above, Respondent's second motion is considered first.
Respondent's Motion to Dismiss Based on Reinstatement of Tenancy — Seq. 2
The only question for the court to consider on this motion is whether the fully executed binding lease offer vitiated the notice of termination and requires that this proceeding be dismissed.
By offering Respondent a renewal lease and fully executing same, Petitioner created a binding lease agreement. Renewal lease offers are required to be binding. (Rent Stabilization Code [9 NYCRR] § 2525.3 [a] ). This is the case even if the landlord was acting under a legal obligation to offer the lease and did not intend to create a binding agreement. (Matter of E. 56th Plaza v. New York City Conciliation and Appeals Bd. , 56 NY2d 544 [1982] ; Related Broadway Dev. LLC v. Malo , 58 Misc 3d 154[A], 2018 NY Slip Op. 50175[U] [App Term, 1st Dept 2018] ; 123 W. 15, LLC v. Compton , 4 Misc 3d 138[A], 2004 NY Slip Op. 50938[U] [App Term, 1st Dept 2004] quoting Steinmetz v. Barnett, 155 Misc 2d 98, 101 [Civ Ct, NY County 1992].)
The distinction between offering a renewal lease after the annulment of the landlord-tenant relationship by the entry of a judgment and issuance of warrant, and offering a renewal lease during litigation but prior to the entry of a judgment and issuance of a warrant, is central to the analysis of Respondent's motion.
In cases where the landlord-tenant relationship has been annulled because of the entry of a judgment and issuance of a warrant, courts have found that the landlord is no longer under a legal obligation to offer a renewal lease, and, thus, the tenant's right to occupy the premises flows from the new lease. (See Related Broadway Dev. LLC v. Malo , 58 Misc 3d 154[A], 2018 NY Slip Op. 50175[U] [App Term, 1st Dept 2018] [offer and execution of a renewal lease and acceptance of additional security vitiate the landlord's right to evict under a previously issued warrant]; Everett D. Jennings Apts. L.P. v. Hinds , 12 Misc 3d 139[A], 2006 NY Slip Op. 51335[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006] [tenancy is canceled by issuance of a warrant, thus right to possess apartment flows from subsequently offered renewal lease]; Stepping Stones Assoc. v. Seymour , 8 Misc 3d 138[A], 2005 NY Slip Op. 51309[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2005]; 43-19 39th Place, LLC v. Morillo , 17 Misc 3d 138[A], 2007 NY Slip Op. 52333[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]; Kew Gardens Assoc., LLC. v. Camacho , 3 Misc 3d 135[A], 2004 NY Slip Op. 50473[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2004] [landlord's ratification of a renewal lease subsequent to the issuance of the warrant vitiates its right to evict pursuant to the final judgment]; Coleman v. Dabrowski , 163 Misc 2d 763 [App Term, 1st Dept 1994] [offering a renewal lease even after issuance of warrant does not reinstate tenancy where procedures for renewal are implemented to comply with the Rent Stabilization Code regarding expiring leases].)
Respondent cites Bronxdale Manor LLC v. Cancel (Civ Ct, Bronx County, May 5, 2014, J. Pinckney, L & T Index No. 40193/2012) in support of its motion but Cancel does not actually support Respondent's position. In Cancel , a renewal lease offer was made to the respondent and fully executed five months after the respondent entered into a final judgment in a stipulation of settlement, and three months after the warrant had issued. Following the reasoning of the cases above, the Cancel court found that under those circumstances — where a judgment and warrant had already issued — the respondent's tenancy was reinstated. The court also noted that the lease was not offered "pursuant to any regulatory requirement (such as where a lease is scheduled to be renewed during litigation but before the entry of a judgment)," signaling that it would have ruled differently if the renewal offer had been made prior to the annulment of the landlord-tenant relationship by the issuance of a warrant.
Appellate courts in the First Department have held that the offer of a renewal lease during litigation and prior to the entry of a final judgment, in conformity with the requirements of the Rent Stabilization Code, does not revive the landlord-tenant relationship. In FM United LLC v. Dule-Wollin (46 Misc 3d 126[A], 2014 NY Slip Op. 51767[U] [App Term, 1st 2014] [internal quotation marks omitted] ), the court found that the landlord's post-petition offer of a renewal lease which was required by the Rent Stabilization Code "did not void the landlord's previously served notice to terminate the lease based on tenants' alleged chronic rent delinquency since the act of renewing the lease was not one of free will but of adhering to the requirements of law." In Kibel v. Davan Enters., Inc. (1991 NY MISC LEXIS 859 [App Term, 1st Dept, Oct. 31, 1991] ), the trial court dismissed a holdover proceeding based on occupancy of unauthorized persons without the landlord's consent when the landlord offered the tenant a renewal lease during the pendency of the litigation, an "act contrary to notice to terminate tenancy (sic)." (Id. at *1.) The Appellate Term reversed the trial court holding that "the tender of a renewal lease in conformity with Code requirements should not be construed as vitiating the holdover proceeding or waiving landlords' right to prosecute the proceeding." (Id. at *1.)
Also distinguishable are cases where an equivocal act of the landlord, after the service of a notice of termination but prior to the commencement of a proceeding, has been found to vitiate a notice of termination. In Compton , cited by Respondent in support of its argument, a renewal lease was offered to the tenant after service of a notice of intention not to renew the lease and prior to the commencement of the proceeding. The court dismissed the proceeding, reasoning that tenants "should not have to parse equivocal notices given by the landlord in renewal situations." ( Compton , 4 Misc 3d 138[A], 2004 NY Slip Op. 50938[U].) Unlike in this case, in Compton the offer of a renewal lease in a case where the landlord has already served notice of an intent not to renew the lease is antithetical to its cause of action. Moreover, the facts of Compton are more analogous to cases which find that a landlord should not be permitted to pursue a cause of action when the non-amendable predicate notice which supports the proceeding has been vitiated by equivocal acts prior to the commencement of the proceeding. (See e.g. Roxborough Apt. Corp. v. Becker , 176 Misc 2d 503 [Civ Ct, NY County 1998] ; 528 E. 11th St. H.D.F.C. v. Durieaux , 164 Misc 2d 595 [Civ Ct, NY County 1995].
In Compton , in anticipation of the lease expiring on May 31, 2003, the landlord sent the tenant a notice of non-renewal on February 19, 2003. Thereafter, on April 10, 2003, prior to initiating the proceeding based on the tenant's non-primary residence, the landlord offered to renew the tenant's lease.
In this case, the renewal lease was offered and executed during the pendency of the litigation. While a notice to terminate the lease was served, until a final disposition in this case, the landlord-tenant relationship has not been annulled, the tenant remains a rent-stabilized tenant, and the Petitioner is bound by the requirements of the Rent Stabilization Laws. Under the circumstances of the case at bar, where the landlord offered a renewal lease to the tenant during litigation in accordance with the requirements of the Rent Stabilization Law, the notice to terminate the tenancy is not vitiated, and the proceeding survives. The Court is not persuaded that Petitioner's acquiescence to Respondent's request for a two-year renewal lease rather than a one-year renewal lease, after the initial lease offer was fully executed, is an act so affirmative or equivocal that, despite prevailing case law, this case must be dismissed.
For the foregoing reasons, the Respondent's motion to dismiss the Petition on the grounds that Respondent's tenancy has been reinstated by the offer and execution of a renewal lease during the pendency of the proceeding is denied.
Respondent's Motion to Dismiss Based on Insufficiency of the Predicate Notices — Seq. 1
On a motion to dismiss pursuant to C.P.L.R. § 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 and determine only whether the facts as alleged fit within any cognizable legal theory. ( Leon v. Martinez , 84 NY2d 83, 87 [1994].
A predicate notice served pursuant to the Rent Stabilization Code must state the facts necessary to establish the ground for eviction. ( Rent Stabilization Code [9 NYCRR] § 2524.2 [b].) "[B]road, unparticularized allegations" that are "generic and conclusory" neither satisfy the level of specificity required by Section 2524.2 (b) of the Rent Stabilization Code, nor do they enable the tenant to prepare a defense. ( 69 E.M. LLC v. Mejia , 49 Misc 3d 152[A], 2015 NY Slip Op. 51765[U] [App Term, 1st Dept 2015] citing Berkeley Assoc. Co. v. Camlakides , 173 AD2d 193 [App Div, 1st Dept 1991], affd 78 NY2d 1098 [1991].) The Appellate Term has written that the "salutary purpose" of requiring specific facts within predicate notices is "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], 2009 NY Slip Op. 52858[U] [App Term, 1st Dept 2009] [generic and conclusory allegations do not satisfy requirement to set forth facts necessary to establish grounds for claim of nonprimary residence].)
In 128 Second Realty LLC v. Dobrowolski , 51 Misc 3d 147[A], 2016 NY Slip Op. 50772[U] [App Term, 1st Dept 2016], a nuisance holdover based on the tenant's alleged operation of an illegal transient hotel, the Petition was dismissed because notices were "vague and conclusory" despite an investigator's submission of numerous photographs depicting "eight different individuals entering and/or exiting tenant's apartment with overnight bags" over a four-month period].) Justice Shulman wrote in his concurring opinion, "this decision's message makes clear that a more thorough facts-investigation should be undertaken before starting this nuisance-type eviction proceeding." (Id. at *2.)
Furthermore, for a Notice of Termination to be sufficient to support a proceeding it must allege specific facts to support the claim that respondent failed to comply with the Notice to Cure. ( Hew-Berg Realty v. Mocerino , 163 Misc 2d 639 [Civ Ct, Kings County 1994] ; 76 W. 86th St. Corp. v. Junas , 55 Misc 3d 596 [Civ Ct, NY County 2017] ; see also 31-67 Astoria Corp. v. Landaira , 54 Misc 3d 131 [A], 2017 NY Slip Op. 50034[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017].)
For the following reasons, Respondent's motion to dismiss this proceeding on the grounds that the predicate notices are fatally insufficient is granted.
Petitioner's Notice to Cure vaguely alleges that Respondent has sublet or assigned all of part of the premises to "a number of persons" without Petitioner's prior consent in violation of Article 12 of his lease ; and by doing so has violated Article I of his lease which places "limits on the number of people who may legally occupy an Apartment of this size." Petitioner also refers to Article 8 of Respondent's lease which states: "Tenant must take good care of the Apartment and all equipment and fixtures in it."
According to the Notice to Cure, Article 12 provides: Assignment and sublease. Tenant must not assign all or part of this Lease or sublet all or part of the Apartment or permit any other to use the Apartment. If Tenant does, Landlord may cancel the Lease as stated in the Tenant's Default section.
According to the Notice to Cure, Article 1 provides: Use. The Apartment must be used only as a private Apartment to live in as the primary residence of the Tenant and for no other reasons. Only a party signing this Lease dwelling may use the Apartment. The Apartment is subject to limits on the number of people who may legally occupy and Apartment of this size.
No further details or specific factual allegations are provided in the Notice to Cure to support an illegal sublet claim. Petitioner does not attempt to specify who the alleged "number of persons" are that are occupying the apartment, or any names of said persons. Nor does Petitioner provide any specific information regarding the actual number of persons allegedly subleasing the premises, or even an approximation. Petitioner also conspicuously fails to allege that Respondent lives elsewhere, or any details connecting Respondent to an alternate address. At least a modicum of specificity is required in order for the notice to be sufficient to support an illegal sublet proceeding. (See eg Perle v. Ross , 1150 Misc 2d [App Term, 1st Dept 1991] [notice is sufficient where alleged illegal sublessee is identified by name]; Amin Mgt LLC v. Martinez , 55 Misc 3d 144[A], 2017 NY Slip Op. 50664[U] [App Term, 1st Dept 2017] [notices are sufficient in an illegal sublet proceeding where the number of individuals occupying apartment are cited]; East Vil. RE Holdings v. McGowan , 57 Misc 3d 155[A], 2017 NY Slip Op. 51623[U] [App Term, 1st Dept 2017] [notice in illegal sublet proceeding that alleges tenant living at another specified address and gives subtenant's name meets standard for specificity]; 235 W. 71st St., LLC v. Checkak , 16 AD3d 242 [App Div, 1st Dept 2005] [dismissing an illegal assignment proceeding on summary judgment where "[t]he only evidence proffered by petitioner was that the apartment may not be [the tenant's] primary residence].)
Petitioner in its opposition cites Kimmel v. Estate of Ling Kai K'ung , NYLJ, Aug. 6, 1993 at 21, col 5 [App Term, 1st Dept 1993] for the proposition that the notices are sufficient to establish an illegal sublet. However, Kimmel was not about the predicate notices but, rather, what proof at trial was necessary to establish a sublet agreement. Even so, it is clear in the decision that an essential element of an illegal sublet proceeding is that the tenant is no longer maintaining the premises as its primary residence, an allegation missing from Petitioner's notices.
To the extent that Petitioner is alleging that Respondent is breaching his lease by exceeding the limitation on the number of people who may reside in the apartment, no specific factual details are given to support this claim that Article 1 of the lease has been breached. Petitioner does not give even an approximation of how many people are living in the apartment, who these people might be or what their relationship to Respondent is, the size of the apartment, how Respondent's use of the apartment exceeds the limits of the number of people who may legally occupy and apartment of "this size," or what the limitations are.
To the extent that the Notice to Cure is read as an allegation of overcrowding in violation of the Multiple Dwelling Law, Petitioner fails to allege the necessary elements of such a claim. Petitioner does not cite to the relevant section of the Rent Stabilization Code, or allege that a violation has been issued against it thus subjecting it to civil or criminal penalties. ( 210 W. 94 LLC v. Concepcion , 2003 NY Slip Op. 50612[U], 2003 WL 1873768 [App Term, 1st Dept 2003] [petition dismissed where notice did not allege that an overcrowding violation had been placed against the apartment and that it was thus "subject to civil or criminal penalties"]; JMW 75 LLC v. Wielaard , 47 Misc 3d 133[A], 2015 NY Slip Op. 50473[U][App Term, 1st Dept 2015] [in the absence of any showing that a violation has been placed against the premises or that landlord was actually "subject to civil or criminal penalties," the proceeding is premature].)
At oral argument, Petitioner's attorney stated that Petitioner was not claiming overcrowding in violation of the Multiple Dwelling Law and therefore no violations need be shown. Petitioner's attorney stated that it claims only that Respondent is violating his lease and the law by allowing too many persons to live in the apartment. Respondent correctly points out that the predicate notice is ambiguous because the lease provision refers to limits placed on occupancy by law . Respondent thus properly addressed this issue in its Motion to Dismiss.
In support of the allegation that Respondent has violated its obligation set forth in Article 8 of its lease to "take good care of the Apartment," Petitioner states:
"The facts to establish the existence of such grounds include the following. On more than ten (10) occasions since March 23, 2017, one or more of the occupants of the Apartment have cause (sic) substantial physical damage to the Apartment ether maliciously, recklessly or due to gross negligence, thereby requiring that repairs be made to the Apartment repeatedly."
Petitioner then lists 13 repairs that have been made in the subject premises between May 23, 2017 and September 14, 2017 and alleges that the repairs were due to "damage caused by the by the recklessness, malice, or gross negligence of one or more of the numerous occupants of the Apartment." The language used by the Petitioner in fleshing out the breach of lease is that used to allege a nuisance, although nuisance is not stated as the basis for the proceeding in the Notice to Cure, either explicitly or by reference to the relevant provision of the Rent Stabilization Code, and the notice specifically requires Respondent to cure this alleged violation its lease by a date certain.
The Court notes that Petitioner's agents were inside the apartment to make repairs on at least 13 occasions prior to issuing the Notice to Cure, and had ample opportunity to conduct a more-thorough facts investigation of the type contemplated by Justice Shulman in his concurring opinion in 128 Second Realty, LLC (51 Misc 3d 147[A], 2016 NY Slip Op. 50772[U] ), supra at 6. However, if additional information to support or clarify any of its claims was gathered, it was not shared with Respondent or the Court.
In its Notice of Termination Petitioner states "you have violated and are still violating a substantial obligation of your tenancy" and reiterates the vague and conclusory language in the Notice to Cure regarding illegal subletting. The notice states that since the expiration of the cure period, the superintendent observed on October 24, 2017 that "many (if not all) of the aforesaid said (sic) impermissible occupants were observed as still occupying the Apartment." However, this allegation, while presumably meant to indicate a continuing violation for subletting and over-occupying the apartment in violation of the lease, does not establish a violation of the lease for subletting or over-occupying the apartment in the first place, and, aside from this conclusory statement, no additional factual information is given to indicate that the alleged breaches have not been cured.
Petitioner also cites to Section 2524.3 (b) of the Rent Stabilization Code in the Notice of Termination and incorporates by reference the allegations regarding repairs in the Notice to Cure which the Respondent, confusingly, was specifically instructed to cure by a date certain. However, at oral argument, Petitioner's attorney unequivocally stated that Petitioner is no longer seeking to terminate the tenancy on this ground because this alleged violation has been cured as no further acts of alleged diminution occurred between the last necessary repair and the service of the Notice of Termination. Petitioner having abandoned this claim, the Court no longer need rule on this branch of Respondent's motion.
Conclusion
The Court finds that the notices, both individually and read together, are confusing and lacking in the kind of factual specificity that is required by law. Because Petitioner has failed to set forth sufficient specific factual allegations in support of its claim that Respondent has breached his lease by illegally subletting the premises or creating an overcrowding situation, the Petition is dismissed. This constitutes the Decision and Order of the Court.