645 LLC v. DOE DOE 625 4E NY 10552 (2026)

Petitioner commenced this holdover summary proceeding in May 2026 seeking to recover possession of the residential premises located at 625 N. Macquesten Parkway, Apt. #4E, Mount Vernon, New York (hereinafter "subject premises").

Respondent Dorothy Clyburn moves to dismiss the petition on the grounds that: 1) the Court lacks personal jurisdiction over her because the Notice of Petition and Petition were not timely served in accordance with RPAPL § 733(1); and 2) the predicate termination notice is defective.

Petitioner opposes the motion.

The petition alleges that respondent's lease agreement expired on May 18, 2026, and that respondents thereafter remained in possession without petitioner's permission. The petition further alleges that respondents were served with a written 60-Day notice to vacate. The petition states that such notice was required because respondents had occupied the premises for more than one year but less than two years and had a lease term of at least one year but less than two years.

A Notice to Terminate, dated May 6, 2026, is annexed to the petition. The notice states that petitioner elected to terminate the tenancy because a flood occurred on February 3, 2026, causing significant damage to the premises and rendering multiple apartments unhabitable. The notice further states that the respondents refused alternative accommodations and have refused to vacate the premises. Petitioner maintains that all the residents must vacate so that the necessary repairs can be completed. Notwithstanding the petition's characterization of the predicate notice as a 60-Day notice, the annexed Notice to Terminate directs respondents to surrender possession and vacate the premises within ten (10) days of service of the notice.

The Notice of Petition and Petition were filed with the Court on May 29, 2026 and made returnable on June 17, 2026. The affidavit of service was filed on June 10, 2026. Process Server Nashon Halevi avers that after unsuccessful attempts at personal service on June 8 and June 9, 2026, he affixed copies of the Notice of Petition and Petition to the door of the premises on June 9, 2026 at approximately 8:30pm. He further avers that additional copies were mailed to the premises after affixing the papers to premises.

RESPONDENT'S ARGUMENTS

Respondent affirms that she has resided at the premises since November 1, 2024. She states that her current lease commenced on November 1, 2025 and expires on October 31, 2026. Respondent therefore disputes the petition's allegation that her lease expired on May 18, 2026.

Respondent argues that the Court lacks personal jurisdiction over her because the Notice of Petition and Petition were not timely served. Respondent states that the Notice of Petition and Petition were filed on May 29, 2026 and made returnable on June 17, 2026. Although the petition was noticed to be heard on June 17, 2026, the papers were not affixed to the premises until June 9, 2026, and the affidavit of service was not filed until June 10, 2026. Respondent contends that service therefore failed to comply with RPAPL § 733, which requires "the notice of petition and petition to be served at least ten and not more than seventeen days before the time at which the petition was noticed to be heard". Relying on 527 w. 48th St LLC v Strotz, 86 MIsc 131 [App Term, 1st Dept 2025}, respondent contends that the petition must be dismissed when service is not completed at least ten days before the return date.

Respondent also argues that the proceeding must be dismissed because the termination notice is defective. She argues that the Notice of Termination fails to identify a legally sufficient basis for terminating her tenancy before the expiration of the lease on October 31, 2026. She further contends that RPL § 226-c required petitioner to provide at least 60 days' notice because she has occupied the premises for more than one year. She argues that the Notice to Terminate, dated May 6, 2026, purported to terminate her tenancy within ten days after service. Respondent contends that neither the notice nor the petition identifies any statute, lease provision or other legal authority permitting petitioner to terminate her possessory interest upon ten days' notice.

Respondent further states that, to her knowledge, neither the Mount Vernon Building Department nor any other government authority condemned the building or her apartment before or after the February 2026 failure of the building's sprinkler system. Respondent challenges petitioner's assertion that dangerous and hazardous conditions required the building to be vacated. Respondent's counsel states that he spoke with Chimezi Ihedioha, the Mount Vernon Department of Buildings Inspector who inspected the property following the sprinkle system incident. According to counsel, the inspector reported that the building had not been condemned or declared unfit for human habitation.

Accordingly, respondent seeks dismissal of the proceeding, or alternatively, permission to serve and file an Answer.

PETITIONER'S ARGUMENTS

Petitioner opposes the motion, arguing that respondent has failed to establish a basis for dismissal. Petitioner maintains that, on a motion pursuant to CPLR § 3211(a)(7), the pleadings must be liberally construed, the facts alleged must be accepted as true, and petitioner must be afforded the benefit of every favorable inference. Petitioner contends that the petition states a valid cause of action based upon its contractual right to terminate respondent's tenancy following a substantial casualty event.

With respect to personal jurisdiction, petitioner argues that respondent does not deny receiving the Notice of Petition and Petition and has not demonstrated any prejudice resulting from the manner in which service was completed. Petitioner characterizes respondent's objection as concerning the late filing of proof of service and argues that such a defect is a nonjurisdictional irregularity that may be disregarded pursuant to CPLR § 2001.

Petitioner acknowledges that respondent relies upon 527 W. 48th St. LLC v Strotz (86 Misc 3d 131 [App Term, 1st Dept 2025]) but argues that this Court is bound by precedent from the Second Department. Relying upon Siedlecki v Doscher (33 Misc 3d 18 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]), Ruffin v Lion Corp. (15 NY3d 578 [2010]), Nardeo v Diaz (82 Misc 3d 1092 [Civ Ct, Bronx County 2024]) and Wilmington Savings Fund Society, FSB v Iandoli (2024 NY Slip Op 50957[U] [Sup Ct, Suffolk County 2024]), petitioner argues that the late filing of an affidavit of service is a technical defect that may be overlooked when the respondent received actual notice and suffered no prejudice.

Petitioner contends that respondent was apprised of the commencement and pendency of the proceeding, appeared in court, retained counsel and was afforded an opportunity to present her objections and defenses. Petitioner therefore argues that the purpose of the service statutes was satisfied and that any failure to complete service within the period prescribed by RPAPL § 733(1) should be disregarded as a nonprejudicial technical infirmity.

Petitioner further argues that it possessed contractual authority to terminate respondent's tenancy. In support of its opposition, petitioner submits the affirmation of its managing agent, Michael Goldberg. Mr. Goldberg states that respondent initially occupied the subject apartment pursuant to a one-year lease commencing on or about November 1, 2024. He states that the lease was renewed for an additional one-year term beginning November 1, 2025 and ending October 31, 2026. Mr. Goldberg further states that the apartment is not subject to the ETPA or any other rent regulation.

Mr. Goldberg avers that, during the overnight hours of February 3, 2026, the building's fire-suppression system catastrophically failed, causing significant flooding and water damage from the fifth floor to the ground floor. According to Mr. Goldberg, the flooding affected numerous apartments, common areas, floors, walls, ceilings, electrical systems and other mechanical systems. He further states that the water froze because the incident occurred during the winter, causing additional damage to the building.

Mr. Goldberg maintains that, following inspections by petitioner's insurance company, petitioner was advised that the entire building must be rehabilitated from the ground floor upward, floor by floor and apartment by apartment. He asserts that the rehabilitation work is extensive and cannot be performed while the building remains occupied. Petitioner further maintains that contractors will not commence the work while residents remain in the building because doing so would expose the landlord, contractors, subcontractors and occupants to potential liability.

Mr. Goldberg states that petitioner offered alternative apartments to all residents immediately after the incident. According to Mr. Goldberg, most tenants relocated, leaving only three occupied apartments, including respondent's apartment. He asserts that respondent rejected the alternative housing offered to her and continues to occupy the premises, thereby preventing petitioner from commencing the rehabilitation work.

Mr. Goldberg further states that respondent commenced a personal injury action against petitioner and its remediation company alleging that she was injured as a result of the February 3, 2026 incident. Petitioner argues that respondent has alleged in that action that the building was unsafe and seeks monetary compensation, while simultaneously refusing to vacate the apartment or accept alternative housing.

Petitioner relies upon Paragraph 11 of the parties' lease, entitled "Damage, Fire or Other Catastrophe." Petitioner asserts that Paragraph 11 authorizes the landlord, in the event of fire or other damage to the unit not caused by the tenant, either to repair the unit or terminate the lease. Petitioner also relies upon the portion of Paragraph 11 providing that, where the building is substantially damaged by fire or another catastrophe, the landlord has the right to demolish, renovate or rebuild the premises and may cancel the lease upon written notice to the tenant.

Petitioner contends that the February 3, 2026 failure of the building's fire-suppression system and the resulting building-wide flooding constituted the type of casualty contemplated by Paragraph 11. Petitioner therefore maintains that it properly exercised its contractual right to terminate respondent's tenancy by serving the May 6, 2026 Notice to Terminate.

Petitioner argues that it acted reasonably and in good faith by offering respondent alternative housing and that respondent's refusal to accept those accommodations does not invalidate petitioner's exercise of its contractual rights. Accordingly, petitioner requests that respondent's motion be denied in all respects.

Other than the parties' lease, petitioner does not submit documentary evidence substantiating the assertions contained in Mr. Goldberg's affirmation. Petitioner does not provide any insurance-company report or correspondence, contractor affidavit, repair estimate, engineering or inspection report, governmental determination, photograph of the alleged damage, proposed scope of work, or documentation of the alternative apartments allegedly offered to respondent. Petitioner's opposition also does not separately address respondent's contention that Real Property Law § 226-c required a 60-day termination notice.

RESPONDENT'S REPLY

In reply, respondent argues that petitioner's opposition misconstrues the jurisdictional defect raised in the motion. Respondent does not contend merely that petitioner filed the affidavit of service late. Rather, she reiterates that she was afforded fewer than the ten days of notice required by RPAPL § 733 (1).

Respondent contends that petitioner's reliance upon Siedlecki v Doscher, Ruffin v Lion Corp., Nardeo v Diaz and Wilmington Savings Fund Society, FSB v Iandoli is misplaced. According to respondent, those cases concern technical defects in the filing of proof of otherwise timely service. Respondent argues that the defect here is not a late filing that may be disregarded under CPLR § 2001, but petitioner's failure to provide the minimum statutory notice period prescribed by RPAPL § 733(1). Respondent therefore maintains that actual receipt of the papers and the absence of demonstrated prejudice do not cure the short-service defect.

Respondent further argues that the petition fails to state a cause of action because neither the petition nor the predicate Notice to Terminate identifies the lease provision or other legal authority upon which petitioner purportedly terminated her tenancy. Respondent emphasizes that the petition alleges that her lease expired on May 18, 2026, while the parties agree that her renewed lease remained in effect through October 31, 2026. Respondent contends that petitioner may not cure the petition's failure to identify the basis for termination by relying for the first time in opposition upon Paragraph 11 of the lease and additional factual allegations concerning the February 3, 2026 incident. Respondent argues that RPAPL § 741(4) requires the petition itself to state the facts upon which the proceeding is based.

Respondent also disputes petitioner's contention that Paragraph 11 authorized termination upon the ten-day notice served in this case. Respondent argues that Paragraph 11 contains separate provisions governing damage to the individual unit and substantial damage to the building. Although the provision addressing damage to the unit permits the landlord to elect to repair the unit or terminate the lease, respondent maintains that petitioner has not alleged or established that her apartment sustained damage or was rendered uninhabitable.

Respondent argues that petitioner's own factual theory instead invokes the building-wide catastrophe provision of Paragraph 11. Petitioner alleges that the entire building sustained substantial damage, must be completely vacated and requires floor-by-floor and apartment-by-apartment rehabilitation. Paragraph 11 provides that, where the building is substantially damaged by fire or another catastrophe and the landlord elects to demolish, renovate or rebuild the premises, the landlord may cancel the lease upon no fewer than 30 days' written notice. Respondent therefore contends that the ten-day Notice to Terminate did not comply with the contractual notice requirement applicable to petitioner's asserted basis for termination.

Respondent further argues that petitioner has not substantiated its assertions concerning the nature and extent of the alleged damage or the necessity of vacating the entire building. Respondent also maintains that no governmental authority condemned the building or declared her apartment unfit for human habitation and that she has observed no damage to her unit.

Respondent disputes petitioner's characterization of the alternative housing allegedly offered to her. She asserts that the parties were engaged in negotiations through counsel concerning a reasonable accommodation and that petitioner refused to permit such negotiations to proceed through counsel. Respondent further argues that the separate action she commenced does not establish that her apartment was damaged or uninhabitable and does not excuse petitioner from complying with the lease or the statutory requirements governing this proceeding.

Finally, respondent notes that petitioner's opposition does not address her contention that Real Property Law § 226-c required 60 days' notice. Respondent maintains that, regardless of whether Real Property Law § 226-c applies, the ten-day Notice to Terminate failed to comply with the 30-day notice provision contained in Paragraph 11 upon which petitioner now relies.

Accordingly, respondent argues that the petition should be dismissed.

CONCLUSIONS OF LAW

Service of the Notice of Petition and Petition

RPAPL § 733(1) provides that, except in a nonpayment proceeding governed by RPAPL § 732, "the notice of petition and petition shall be served at least ten and not more than seventeen days before the time at which the petition is noticed to be heard." Where service is made by conspicuous-place service, RPAPL § 735(2)(b) requires proof of service to be filed with the Court within three days after mailing and provides that service is complete upon the filing of proof of service.

Here, the Notice of Petition and Petition were made returnable on June 17, 2026. According to petitioner's affidavit of service, the papers were affixed to the door of the subject premises on June 9, 2026 and "mailed within 2 days of such delivery". The affidavit of service was filed with the Court on June 10, 2026. Thus the papers were affixed only eight days before the return date, and service was completed upon filing only seven days before the return date. Petitioner therefore failed to comply within the minimum ten-day period required by RPAPL § 733(1).

Petitioner relies upon CPLR § 2001 authority holding that the untimely filing of proof of service may be disregarded as nonprejudicial irregularity (see Siedlecki v Doscher (33 Misc 3d 18 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]) (holding that the late filing of proof of service may constitute a nonjurisdictional irregularity where delivery and mailing were properly accomplished and the respondent suffered no prejudice). Those authorities are distinguishable. In Ruffin v Lion Corp. (15 NY3d 578 [2010]), the Court of Appeals held that CPLR § 2001 may be used to disregard certain technical defects in service that do not affect the likelihood that the papers will reach the party being served. The defect in Ruffin, however, concerned the statutory qualifications of the process server. It did not involve a failure to provide the minimum period of notice expressly required by statute.

Likewise, Siedlecki v Doscher (33 Misc 3d 18 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]), Nardeo v Diaz (82 Misc 3d 1093 [Civ Ct, Bronx County 2024]), Wilmington Sav. Fund Socy., FSB v Iandoli (2024 NY Slip Op 50957[U] [Sup Ct, Suffolk County 2024]) and Matter of AMH Resources Corp. v French (87 Misc 3d 470 [Warren County Ct 2025]) concerned the late filing of proof of service following otherwise timely delivery of the papers. Those cases recognize that, under appropriate circumstances, a filing defect may be corrected or disregarded pursuant to CPLR § 2001. They do not hold that CPLR § 2001 authorizes a court to shorten the statutory notice period prescribed by RPAPL § 733(1). The Court also considered 14-16 30th Rd., LLC v Hassan (87 Misc 3d 37 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2025]). In that case, amendment and re-service were permitted because pandemic-era court procedures prevented the landlord from knowing the return date when service was originally made. No comparable court-created impediment or extraordinary circumstance exists here.

The distinction was recently explained in Colon v Alvarenga, 89 Misc 3d 1247[ ], 2026 NY Slip Op 51288[U] [Civ Ct Kings Cty 2026]. There, the court recognized that, in the Second Department, the late filing of proof of service is not jurisdictional and may constitute a correctable irregularity. The court nevertheless held that this principle does not excuse the failure to deliver the Notice of Petition and Petition within the statutory window period prescribed by RPAPL § 733 [1]. As the court stated, "[t]he requirement that service be made within the statutory window period applies in both Departments" and "[t]he delivery of the papers must occur within the statutory timeframe (id.).

The same distinction controls here. Respondent does not challenge a delayed filing of an affidavit establishing otherwise timely service. The defect is that petitioner did not begin its service attempts until June 8, 2026, and did not affix the papers until June 9, 2026, even though the Notice of Petition specified a June 17, 2026 return date. Consequently, respondent was not afforded the minimum statutory period between service and the return date.

Petitioner's reliance upon cases addressing the late filing of proof of service is therefore misplaced. Those cases permit a court, under appropriate circumstances, to disregard a defect in the proof of otherwise timely service. They do not permit a court to dispense with the minimum notice period established by RPAPL § 733(1). Accordingly, petitioner's failure to comply with RPAPL § 733(1) requires dismissal of the proceeding.

Sufficiency of the Predicate Notice

Even if the service defect were disregarded, dismissal would nevertheless be required because the predicate Notice to Terminate did not comply with the parties' lease. Where the predicate notice is insufficient, the defect cannot be cured by amendment of the petition or by allegations subsequently supplied in opposition to a motion to dismiss (Chinatown Apts., Inc. v Chu Cho Lam, 51 NY2d 786, 788 [1980]). A landlord must also comply with applicable notice provisions contained in the parties' lease (see 146 Flushing Ave., LLC v 66S Fusion, Inc., 72 Misc 3d 128[A], 2021 NY Slip Op 50595[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]).

A predicate notice must "state the facts necessary to establish the existence of grounds for an eviction" (See Great Jones St. Realty Corp. V. Chimsanthia, 127 N.Y.S. 3d 689 [App. Term, 1st Dept 2020]; 888 E.96th st., LLC v. Hargrove, 111 N.Y.S.3d 494 [App.Term, 2d, 11th & 13th Jud. Dists. 2018]). The notice must further "provide the necessary information to enable the tenant to frame a defense and to meet the tests of reasonableness and due process. (See Broadhurst Willows Apts. V. Wooten, 143 N.Y.S. 3d 518 [N.Y.Civ.Ct.NY Cnty. 2021]; Assoca. V. Waldman, 2019 N.Y.L.J. LEXIS 624 [N.Y.Civ.Ct.N.Y.Cnty. 2019]).

It is undisputed that respondent's renewal lease commenced on November 1, 2025 and was not scheduled to expire until October 31, 2026. Petitioner nevertheless served a Notice to Terminate dated May 6, 2026, directing respondent to surrender possession within ten days. Petitioner now relies upon Paragraph 11 of the lease, entitled "Damage, Fire or Other Catastrophe." Paragraph 11 contains two separate provisions. The first concerns fire or other damage to the individual unit and permits the landlord either to repair the unit or terminate the lease. If the landlord elects to terminate the lease because of such damage, the landlord must provide three days' notice of its intent to terminate. The second portion provides that, where the building in which the unit is situated is substantially damaged by fire or other catastrophe, the landlord may elect to demolish, renovate or rebuild the premises and cancel the lease upon 30 days' written notice.

Petitioner's own allegations invoke the second provision. Petitioner alleges that the building suffered a catastrophic failure of its fire-suppression system, resulting in building-wide flooding and damage to apartments, common areas, floors, walls, ceilings, and electrical and mechanical systems. Petitioner further maintains that the entire building must be vacated before the required rehabilitation work can begin. Those allegations describe the building-wide casualty and rehabilitation contemplated by the portion of Paragraph 11 requiring 30 days' written notice. Petitioner, however, afforded respondent only ten days.

Petitioner cannot rely upon Paragraph 11 as the contractual basis for terminating the lease while disregarding the notice period contained in the applicable portion of that paragraph. Nor do petitioner's opposition papers establish that respondent's individual apartment was rendered uninhabitable so as to bring the termination within the separate provision governing damage to the unit. The Notice to Terminate alleges only that the flood rendered multiple apartments uninhabitable and that all residents must vacate so that building-wide repairs can be performed.

Accordingly, even accepting petitioner's allegations concerning the extent of the casualty and the need for repairs, the ten-day Notice to Terminate did not comply with the 30-day notice provision applicable to petitioner's stated basis for terminating the lease. The notice was therefore insufficient to terminate respondent's tenancy.

The Court also notes that petitioner did not submit any insurance-company correspondence, contractor affidavit, engineering or inspection report, repair estimate, governmental determination, proposed scope of work, photograph or other documentary evidence substantiating the asserted extent of the damage or establishing that the building could not be repaired while occupied. On a motion addressed to the sufficiency of the pleadings, however, the Court need not resolve the disputed factual question concerning the extent of the damage. Even accepting petitioner's allegations as true and affording petitioner every favorable inference, the ten-day predicate notice failed to provide the 30 days required by the lease for termination based upon substantial building-wide damage and renovation.

Petitioner bears the burden of demonstrating by a preponderance of the evidence that a valid predicate notice was properly served (See Chinatown Apartments, Inc. v. Chu Cho Lam, 51 NY2d 786). Petitioner failed to meet its burden. The predicate notice was insufficient to terminate respondent's tenancy and cannot support this holdover proceeding. Petitioner failed to establish compliance with the statutory notice requirements. Because petitioner failed to establish a prima facie case, the petition must be dismissed.

In light of the foregoing determinations, the Court need not reach respondent's remaining argument concerning the applicability of Real Property Law § 226-c.

Respondent's motion to dismiss is granted. The petition is dismissed without prejudice.

This constitutes the Court's Decision and Order.

The Court considered the following papers on this motion: Notice of Motion to Dismiss, dated July 7. 2026 ; Affirmation in Support; Clyburn Affidavit; Exhs A-D. Petitioner's Affirmation in Opposition to Respondent's Motion to Dismiss, dated July 20, 2026; Goldberg Affidavit; Exh. 1. Respondent's Reply Affirmation, dated August 3, 2026.

Dated: September 24, 2026

Mount Vernon, New York

HON. NICHELLE A. JOHNSON

City Judge of Mount Vernon

Nichelle A. Johnson, J.