OVED v. HASBANI (2025)

Recitation, as required by CPLR 2219(a):

Notice of Motion and Affidavits Annexed 1

Order to Show Cause and Affidavits Annexed 0

Answering Affidavits 2

Replying Affidavits 3 Exhibits 4

Stipulations 0

Other 0

Petitioner commenced this holdover proceeding to recover possession of the First Floor Unit located at 1929 East 7th Street, Brooklyn, New York 11223 (“subject premises” or “apartment”). The Petition is predicated by a Ninety (90) Day Notice of Termination, dated March 11, 2024, which states that Petitioner elects to terminate Respondents’ month-to-month tenancy and directs Respondents to vacate on or before June 30, 2024. The Petition, which is dated and was filed on July 9, 2024, pleads in Paragraph 7 that the premises are not subject to rent regulation because the unit is in a building with less than six (6) residential units. Paragraph 8 in the Petition pleads that the tenancy is covered by Article 6-A of the Real Property Law (known as the Good Cause Eviction Law) (“GCEL”) and that Petitioner has authority to maintain this proceeding because Petitioner “desires to use premises for use and occupancy, or principal residence, of the Petitioner-Landlord's spouse, domestic partner, child, stepchild, parent, step-parent, sibling, grandparent, grandchild, parent-in-law, sibling-in-law.” A Good Cause Eviction Law Notice is attached to the Petition (See, RPL § 231-c).

The dates in the Ninety (90) Day Notice of Termination and the Petitions filing date are important because at the time the Notice of Termination was generated New York State law permitted removal of monthly tenants in unregulated apartments without cause, in what was called “no grounds” holdover proceedings. However, on April 20, 2024, after the alleged service of Ninety (90) Day Notice of Termination Notice but prior to commencement of this holdover proceeding, the GCEL went into effect. In properties where the GCEL applies, the law now restricts the removal of protected tenants as of the effective date. (L. 2024, ch 56, § 1 (Part HH), effective April 20, 2024). GCEL protected tenants can no longer be evicted in a “no grounds” holdover and can only be removed from possession based on one of the good cause grounds enumerated in RPL § 216 (1)(a)-(j). GCEL was effective immediately upon enactment, however, the requirement to serve a notice pursuant to RPL § 231-c was not effective until August 18, 2024.

Before the court is Respondent's motion to dismiss pursuant to CPLR § 3211 on three grounds. First, Respondent alleges that the Petition is defective for failure to allege facts establishing a lawful basis for non-renewal under the GCEL; second, Petitioner misdescribed the premises to be recovered; and third, Petitioner cashed three rent checks during the period between the termination date and service of the Notice of Petition and Petition, commonly known as “the window period.”

In the first prong of the motion, Respondent argues that the predicate notice and Petition are defective as Petitioner failed to factually support the allegation that Petitioner seeks to recover the premises for use and occupancy, or principal residence, of a designated family member, as required by RPL § 216(1)(g). Respondent argues that the Petition as plead is generalized and not specific enough to apprise Respondent of the claims against them. For instance, the Petition does note state who seeks to occupy the premises. The Petition lacks any factual allegations regarding a specific family member for whom Petitioner hopes to recover the premises for, fails to state if there are other suitable housing accommodations available for said family member, and any other information required by the GCEL prior to seeking to recover possession of the protected unit. Respondent argues that Petitioner failed to establish “good faith” to recover the unit for said family member by “clear and convincing evidence” as required by law. Petitioner opposes, asserting that Petitioner should not be required to lay bare its proof in the Petition and that the facts provided in the Petition clearly meet the pleading requirements. Petitioner does not seek to elaborate on or amplify the claim that the premises are required for use by a family member, and instead, relies on the form language contained in the Petition and argues that no further information is required.¹

In reviewing Respondent's motion to dismiss pursuant to CPLR § 3211(a)(7) for failure to state a cause of action, “the Court must afford the pleadings a liberal construction, accept all facts as alleged in the pleadings to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory. However, bare legal conclusions are not presumed to be true, nor are they accorded every favorable inference.” (Breytman v. Olinville Realty, LLC, 54 AD3d 703, 703-704 [App. Term, 2nd Dept 2008]; see also, Leon v. Martinez, 84 NY2d 83 [1994]). In evaluating the sufficiency of a predicate notice in a summary proceeding, “the appropriate test is one of reasonableness in view of the attendant circumstances.” (Oxford Towers Co. LLC v. Leites, 41 AD3d 144, 144-145 [1st Dep't 2007]; citing, Hughes v. Lenox Hill Hosp., 226 AD2d 4, 18 [1st Dep't 1996], lv denied 90 NY2d 829 [1997]). Thus, a notice which provides “the necessary additional information to enable the tenant respondent to frame a defense ․ was therefore adequate to meet the tests of reasonableness and due process.” (See, The Jewish Theological Seminary of America v. Fitzer, 258 AD2d 337, 338 [1st Dep't 1999]; see also, Rascoff/Zsyblat Org., Inc. v. Directors Guild of Am., Inc., 297 AD2d 241, 242 [1st Dep't 2002]).

Based on the GCEL regulations, as they pertain to failure to plead GCEL in the predicate notice, the March 11, 2024 notice was served prior to the enactment of the GCEL, and therefore any argument for failure to plead the GCEL in the termination notice is without merit and is denied. (See, TD Equities, Inc v. Cribbs, 2025, 85 Misc 3d 1282(A) [Civ Ct, Hous Part, Queens County 2025]; see also, Inga v. Revenco, 86 Misc 3d 1210(A) [Civ Ct, Hous Part, Kings County 2025]).

However, since the Petition was served after enactment of the GCEL and Petitioner pleads that the premises are subject to the GCEL, with grounds for good cause removal enumerated in RPL § 216(1)(g), the question remains whether the Petition as plead is detailed enough to apprise Respondents of the claims against them.

RPAPL § 741(4) requires that every Petition “state the facts upon which the special proceeding is based.” It is well settled that “a petition must include a concise statement of the ultimate facts upon which the proceeding is based.” (June-July Trust v. Fletcher, 71 Misc 3d 126(A), 1,2 [App Term, 2nd Dep't 2021], citing Giannini v. Stuart, 6 AD2d 418 [1st Dep't 1958]). At a minimum, a Petition must “adequately set forth the material facts upon which the proceeding was based” and be sufficiently particular to give the court and Respondent adequate notice of the material elements of the proceeding. (Matter of 148 S. Emerson Partners, LLC v. 148 S. Emerson Assoc., LLC, 157 AD3d 889, 890 [2nd Dep't 2018]); see also, Jeffco Mgt. Corp. v. Local Dev. Corp of Crown Heights, 22 Misc 3d 141(A) [App Term, 2nd Dep't 2009] [A][Fundamental omissions in the petition which deprive the court and respondent of adequate notice are grounds for dismissal]; Migliaccio v Childs, 65 Misc 3d 131(A), 1 [App Term, 2nd Dep't 2019] [Where a tenancy is subject to a specific form of regulation, the petition must set forth the tenant's regulatory status, and fundamental omissions are grounds for dismissal]).

In reviewing the sufficiently of the pleadings, the court must look at statutory language first and give effect to its plain meaning. (Overton v Town of Southampton, 50 AD3d 1112, 1113 [2nd Dep't 2008][ “Where statutory language is clear and unambiguous, the court should give effect to its plain meaning”]; see also, Anonymous v Molik, 32 NY3d 30, 37 [2018]; Castillo v Prince Plaza, LLC, 142 AD3d 1127, 1129 [2nd Dep't 2016]).

RPL § 216(1)(g) provides in relevant part that “good cause” exists where:

“The landlord seeks in good faith to recover possession of a housing accommodation for the landlord's own personal use and occupancy as the landlord's principal residence, or the personal use and occupancy as principal residence of the landlord's spouse, domestic partner, child, stepchild, parent, step-parent, sibling, grandparent, grandchild, parent-in-law or sibling-in-law, when no other suitable housing accommodation in such building is available, provided that no judgment in favor of the landlord may be granted pursuant to this paragraph unless the landlord establishes good faith to recover possession of a housing accommodation for the landlord's own personal use and occupancy as the landlord's principal residence, or the personal use and occupancy as a principal residence of the landlord's spouse, domestic partner, child, stepchild, parent, step-parent, sibling, grandparent, grandchild, parent-in-law or sibling-in-law, by clear and convincing evidence. This paragraph shall not apply to a housing accommodation occupied by a tenant who is sixty-five years of age or older or who is a disabled person.”

The plain reading of RPL § 216(1)(g) shows that the legislature devised a detailed list of qualified family members for this exception to the GCEL. The legislature also placed the burden on the owner to show that there are no alterative accommodations available for the family member and placed the overall burden on the owner to establish proof in good faith and by clear and convincing evidence. Therefore, based on the plain reading of the statute, owners availing themselves of the RPL § 216(1)(g) exception have an obligation to allege and establish several factors to successfully utilize the exception.

Turning to the motion to dismiss, the court agrees with the premise that Petitioner is not obligated to lay bare its entire proof in the pleadings. As such, establishing a good faith basis for utilizing the qualified family member exception, which is demonstrated by clear and convincing evidence, is ultimately an issue to be proved trial, and is not determined by the pleadings alone. Petitioner does not have to prove its entire case at this juncture.

However, Petitioner is required to satisfy the basic notice requirements of RPAPL § 741(4) and “state the facts” upon which the special proceeding is based so that Respondent can frame a defense. That is the issue at bar. Petitioner contends that the form language utilized is sufficient to meet the pleading threshold. Petitioner, in Paragraph 8, pled that Petitioner “desires to use premises for use and occupancy, or principal residence, of the Petitioner-Landlord's spouse, domestic partner, child, stepchild, parent, step-parent, sibling, grandparent, grandchild, parent-in-law, sibling-in-law.” Petitioner did not identify the person or family relationship of the qualified family member who needs to occupy the subject premises or plead that there are no alternative accommodations available for the family member. The Ninety (90) Day Notice of Termination was served as a “no grounds” holdover, and is silent to these missing factual allegations, so incorporating the predicate notice by reference does not provide further elaboration.

Since the GCEL is new and there is no case law on point, aside from looking only to the statutory language, Respondent asks the court to analogize the GCEL to the requirements promulgated in the Rent Stabilization Code (RSC) and the vast case law addressing sufficiency of the predicate pleadings in owner's use cases. In opposition, Petitioner argues that Respondent should not be permitted to equate the GCEL requirements to Rent Stabilization laws, especially when Petitioner is seeking to recover a unit in a two-family house.

This court find's Respondent's analogy persuasive. Appellate Courts have consistently held that the reiteration of the statutory language in a notice of non-renewal based upon the ground of owner occupancy alone cannot sustain an eviction proceeding. (See, Baumann v Hail, NYLJ, Jan. 19, 1996, at 25, col 2 (App Term, 1st Dept). The statements in an owner's use notice must set forth allegations that are fact specific to the proceeding. (See, Haruvi v Rosen, 10 Misc 3d 137(A) [App Term, 1st Dep't 2005] (Notice of non-renewal which simply gave the landlord's current address but failed to state any reason why the landlord wished to relocate from his present address a few blocks away was insufficient to serve as a predicate for the owner occupancy proceeding]). In Isdahl v. Pogliani, 22 Misc 3d 14 [App Term, 1st Dept 2008], the court found that the notice alleging the owner wanted the apartment for an unnamed daughter was insufficient because it failed to set forth allegations tending to support the stated ground for eviction that were fact specific to that particular proceeding. However, a notice was found to be sufficient when it identified petitioner's son as the family member for whom owner sought to recover the apartment, the date for respondent to vacate the unit, and stated that possession was sought in good faith. (See, Matter of Giancola v. Middleton, 73 AD3d 1056 [2nd Dep't 2010]).

In a lower court case that has a comparable factual background to the proceeding that is now before this court, the Hon. Shorab Ibrahim concluded, in the context of a nuisance exemption to the GCEL, that Petitioner failed to meet the pleading requirements of RPAPL § 741(4) since the Petition in that case did not state any facts about the alleged nuisance. (See, TD Equities, Inc v. Cribbs, 2025, 85 Misc 3d 1282(A) [Civ Ct, Hous Part, Queens County 2025]). The analysis in that proceeding concerning petitioner's failure to plead nuisance is a comparable guidepost to Petitioner's failure to state any facts about the family use exemption in this proceeding.

Measured by the aforementioned framework, Petitioner failed to satisfy the basic notice requirements of RPAPL § 741(4) and “state the facts” upon which the special proceeding is based so that Respondent can frame a defense. Reviewing the underlying Petition using the plain language of RPL§ 216(1)(g), the pleading requirement of RPAPL § 741(4), and the case law concerning predicate notices in the owner's use context, Petitioner failed to adequately plead an exception to the GCEL. Petitioner failed to provide material facts regarding the occupant(s) who intend to take possession of the premises, and whether any alternative housing is available for the undisclosed relative.² The information as plead is a barebones recitation of the statutory language and is bereft of any facts enabling Respondent to frame a defense. These are fundamental omissions that warrant dismissal. (See, Jeffco Mgt. Corp. v. Local Dev. Corp of Crown Heights, 22 Misc 3d 141(A) [App Term, 2nd Dep't 2009] [A][Fundamental omissions in the petition which deprive the court and respondent of adequate notice are grounds for dismissal]; see also, Migliaccio v Childs, 65 Misc 3d 131(A), 1 [App Term, 2nd Dep't 2019] [Where a tenancy is subject to a specific form of regulation, the petition must set forth the tenant's regulatory status, and fundamental omissions are grounds for dismissal]). Furthermore, from a practical perspective, requiring Petitioner to identify the family member or family member's relationship, and to explain that there are no other suitable housing alternatives available, is a far cry from imposing on Petitioner an obligation to lay bare its entire proof. Stating necessary material facts is not an onerous imposition.

Therefore, the Petition as plead does not comply with RPAPL § 741(4) and Respondent's motion is granted to the extent this proceeding is dismissed without prejudice. The court does not reach the balance of Respondent's motion as moot.

This constitutes the Decision/Order of the court and is uploaded to NYSCEF.

FOOTNOTES

1.   Petitioner did not cross-move to amend the Petition.

2.   Since Petitioner did not plead who would occupy the premises, or whether any alternative housing is available, which are both material elements of the case, Petitioner's omissions could lead to unscrupulous behavior. For example, since no relative is named, Petitioner could simply choose a relative from the available list at any point in the proceeding who best fits the exemption at that time. This court is not speculating that this particular landlord would engage in such behavior, but the failure to name who would occupy the premises and omitting mention of alternative housing options leaves the door open to such behavior since Petitioner is not bound by material facts that are missing from the pleadings.

Julie Poley, J.