72-15 REALTY CO. LLC, Petitioner-Landlord, v. Alberto J. MARMOL, Respondent-Tenant, “John Doe” and “Jane Doe,” Respondents-Undertenants.
The decision and order on Respondent's motion to dismiss, or, in the alternative, for an extension of time to file an answer is as follows.
This is a holdover proceeding predicated on a Notice of Termination issued pursuant to Rent Stabilization Code (R.S.C.) § 2524.3(b) (9 NYCRR 2524.3 [b]). The Notice of Termination alleges that Respondent has committed/permitted a nuisance in the subject apartment by, inter alia, pouring or allowing a noxious liquid believed to be chlorine to leak on the floor, down radiator pipes, and along window framing, and making loud noises. Subsequent to the first court date (February 18, 2020), The Legal Aid Society appeared for Respondent and moved to dismiss this proceeding, on the basis that Petitioner failed to serve a notice to cure in accordance with the parties' lease. In the alternative, Respondent requests an extension of time to file an answer. Due to the COVID-19 public health emergency, briefing of the motion was delayed. However, after institution of the Electronic Document Delivery System (EDDS) in Housing Court, opposition and reply papers were served and filed through that system. The court heard argument on the motion to dismiss via Skype on June 18, 2020 and reserved decision.
Respondent moves to dismiss this proceeding pursuant to CPLR § 3211(a)(7), arguing that Petitioner has failed to state a cause of action because it did not serve Respondent with a required predicate notice, specifically a notice to cure. Rent Stabilization Code § 2524.3(b) permits a termination notice to be served on the basis of nuisance. In contrast to R.S.C. § 2524.3(a) (violation of a substantial obligation of tenancy), R.S.C. § 2524.3(b) does not explicitly require service of a notice to cure before a termination notice can be served. See e.g. Kast Realty v. Houston, 2003 N.Y. Slip Op. 50892[U], 2003 WL 21175992 [App. Term, 1st Dept. 2003]. Nonetheless, Respondent annexes a copy of his lease with Petitioner and asserts that Paragraphs 12 and 17, when read in tandem, require service of a notice to cure when “objectionable conduct” as defined in the lease is alleged (as is the case here, he argues). In support, Respondent cites to Minick v. Park, 217 A.D.2d 489, 490, 629 N.Y.S.2d 754 [1st Dept. 1995], in which the Appellate Division, First Department observed that the statutory of scheme of rent stabilization “establishes the minimum rights to be accorded tenants and does not preclude a contract that gives a tenant greater rights.” In Minick, a lease provision that required the service of a six-month notice of lease termination for intended owner occupancy was held to be enforceable, notwithstanding a shorter notice period in the Rent Stabilization Code. Respondent also cites to 751 Union St., LLC v. Charles, 56 Misc.3d 141[A], 2017 N.Y. Slip Op. 51104[U], 2017 WL 3897040 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2017], where the Appellate Term, Second Department affirmed summary judgment in favor of the tenant on a nuisance claim where the landlord had failed to serve a 10-day notice to cure required by the lease when the tenant was alleged to have engaged in “improper conduct which annoy[s] other tenants.” (Citing Minick and 235 W 71 Units LLC v. Zeballos, 127 A.D.3d 489, 8 N.Y.S.3d 48 [1st Dept. 2015]).
Petitioner opposes Respondent's motion to dismiss, primarily arguing that service any cure notice of the lease was optional, rather than mandatory, and that the conduct alleged in the notice of termination is incapable of cure in any event (citing to Strata Realty Corp. v. Pena, 57 Misc.3d 156 [A], 2017 N.Y. Slip Op. 51646[U], 2017 WL 6006018 [App. Term, 1st Dept. 2017], affd in part and mod in part sub nom. Matter of Strata Realty Corp. v. Pena, 166 A.D.3d 401, 86 N.Y.S.3d 74 [1st Dept. 2018]). As to the first argument, Petitioner focuses on the language in Paragraph 17 of the lease (entitled “Default”). It reads, in relevant part:
“1. You default under the Lease if You act in any of the following ways b. You or another occupant of the Apartment behaves in an objectionable manner If You do default in any one of these ways, other than a default in the agreement to pay rent, Owner may serve You with a written notice to stop or correct the specified default within ten (10) days. You must then either stop or correct the default within 10 days, or, if You need more than 10 days, You must begin to correct the default within 10 days and continue to do all that is necessary to correct the default as soon as possible.
2. If you do not stop or begin to correct the default within 10 days, Owner may give you a second written notice that this Lease will end six (6) days after the date the second written notice is sent to You. At the end of this 6-day period, this Lease will end and You must move out of the Apartment. Even though this Lease ends, You will remain liable to Owner for unpaid rent up to the end of this Lease, the value of Your occupancy, if any, after the Lease ends, and damages caused to Owner after that time as stated in Article 18.”
Since this provision states that the landlord “may” serve a cure notice, Petitioner asserts that service of one was optional, not required, before service of a termination notice pursuant to R.S.C. § 2524.2 (9 NYCRR 2524.2). Respondent disputes this interpretation, arguing that the discretionary language in Paragraph 17 refers only to Petitioner's entitlement to decide whether to enforce the default provision (citing to Madison Ave. Leasehold, LLC v. Madison Bentley Assoc., LLC, 8 N.Y.3d 59, 828 N.Y.S.2d 254, 861 N.E.2d 69 ). Respondent also argues that his interpretation (regarding the necessity of serving the cure notice) should prevail in order to avoid an outcome that would render the lease provision ineffective or superfluous; alternatively to the extent that the provision is ambiguous, Respondent asserts that the ambiguity should be interpreted unfavorably against the drafter.
Although not raised by either party, it is necessary to recall that in a summary holdover proceeding, “a landlord must allege and prove that, as of the time the proceeding is commenced, the tenant remains in possession beyond the expiration of his [or her] term” and “[t]he tenancy must have ended automatically by lapse of time and not by election of the landlord to forfeit the lease for breach of a condition.” Perrotta v. Western Regional Off-Track Betting Corp., 98 A.D.2d 1, 2, 469 N.Y.S.2d 504 [4th Dept. 1983] [internal citations omitted]. However, “[i]f a clause in a lease provides that the lease cannot endure beyond the time when a contingency happens, it creates a conditional limitation upon the occurrence of which the lease automatically expires; a summary proceeding will lie to evict a tenant who remains thereafter.” Perrotta, 98 A.D.2d at 2, 469 N.Y.S.2d 504 [internal citations omitted]. See also Calvi v. Knutson, 195 A.D.2d 828, 830, 600 N.Y.S.2d 804 [3d Dept. 1993]. Put simply, a conditional limitation contains both the basis and the means by which a lease may be terminated prior to its natural expiration. The conditional limitation requirement for early termination of a lease has been held to apply without qualification in the context of rent-stabilized tenancies. See e.g. 1900 Albemarle v. Solon, 57 Misc.3d 158[A], 2017 N.Y. Slip Op. 51665[U], 2017 WL 6047377 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2017]; Hatim Group, LLC v. Johnson, 36 Misc.3d 147[A], 2012 N.Y. Slip Op. 51631[U], 2012 WL 3733581 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2012].
Here, the Petition alleges that Respondent's lease expired on January 31, 2020, but that his “term” expired on January 25, 2020. January 25, 2020 is the expiration date of the termination notice served upon Respondent. The Petition also states that Respondent continues in possession after the expiration of his term. Consequently, although it is not explicitly stated in the Petition, this proceeding is brought pursuant to RPAPL § 711(1) (“The tenant continues in possession of any portion of the premises after the expiration of his term”) and may only be maintained if a conditional limitation permitting early termination of the lease exists. See Perrotta, 98 A.D.2d at 2, 469 N.Y.S.2d 504. Paragraph 2 of the lease (“Length of Lease”) states that “[i]f You do not do everything You agree to do in this Lease, Owner may have the right to end it before the above date [January 31, 2020].” This provision does not create a conditional limitation. Rather, “where the express terms of the lease provide the landlord the option to terminate the lease upon a breach by serving a notice fixing a time after the lapse of which the lease will automatically expire, a conditional limitation of the leasehold exists.” Graves v. Hasan, 46 Misc.3d 731, 733, 996 N.Y.S.2d 504 [Civ. Ct., Kings County 2014]; see also Perrotta, 98 A.D.2d at 5, 469 N.Y.S.2d 504 [Conditional limitation existed where “the lease, once the five-day notice is served, expire[d] automatically on the happening of a specified contingency, the arrival of the termination date fixed in the notice”]; Fourth Hous. Co., Inc. v. Bowers, 53 Misc.3d 43, 45, 39 N.Y.S.3d 350 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2016].
Similarly, Paragraph 19 (entitled “Additional Owner Remedies”) does not contain a conditional limitation. The provision reads, in relevant part:
“If You do not do everything You have agreed to do, or if You do anything which shows that You intend not to do what You have agreed to do, Owner has the right to ask a Court to make You carry out Your agreement or to give the Owner such other relief as the Court can provide.”
As with Paragraph 2, this provision is devoid of language that would result in automatic expiration of the lease upon the happening of specific contingency. The only provision that permits early termination is the aforementioned Paragraph 17. The language of Paragraph 17 does include a mechanism for automatic expiration at the end of the second notice period (“At the end of this 6-day period, this lease will end, and You then must move out of the Apartment.”). However, for this contingency to transpire, there must first be: (1) a default as specified therein; (2) service of a 10-day cure notice; and (3) service of a 6-day notice of lease expiration/termination if there has been no cure or the beginning of a correction of the default within the 10-day cure period. Consequently, the conditional limitation could only be met if a notice to cure was first served in accordance with Paragraph 17.
To the extent that Petitioner argues that Respondent's alleged conduct was incapable of cure under the holding in Strata Realty Corp. v. Pena, there is nothing in the Appellate Term's opinion (or the Appellate Division's partial affirmance) that nullifies the conditional limitation requirement that must be met before a summary holdover proceeding may be maintained before the natural expiration of a lease term. Instead, the Appellate Term observed that “[t]he fact that a lease provides time for a cure does not necessarily imply that a means or method of cure must exist in every case [and] to insist upon the service of a formal notice to cure in such circumstances is to compel the performance of a useless and futile act.” Strata Realty Corp., 2017 N.Y. Slip Op. 51646[U], *2. The opinion does not, however, suggest that service of a cure notice is useless or futile when it is a required component of a conditional limitation. Indeed, on multiple occasions, the Appellate Division, First Department (which affirmed the portion of the Appellate Term's opinion in Strata Realty Corp. that obviated the need for a cure notice in the specific circumstances therein) has endorsed the requirement that a conditional limitation must exist before a landlord can terminate a lease due to objectionable conduct by a tenant and maintain a summary holdover proceeding. See Prometheus Realty Corp. v. City of New York, 80 A.D.3d 206, 211, 911 N.Y.S.2d 299 [1st Dept. 2010]; Dass-Gonzalez v. Peterson, 258 A.D.2d 298, 685 N.Y.S.2d 197 [1st Dept. 1999]. As a result, the court does not deem it necessary to make a fact-intensive inquiry as to whether the conduct alleged in the Notice of Termination is subject to cure under the Strata Realty Corp. standard. Since the lease term at issue required the service of a cure notice before the conditional limitation set out therein could be met, Petitioner's failure to serve a cure notice is fatal to its ability to maintain this holdover proceeding. See Fourth Hous. Co., Inc., 53 Misc.3d at 45, 39 N.Y.S.3d 350; 1900 Albemarle, 2017 N.Y. Slip Op. 51665[U], *2.
For the foregoing reasons and upon the court's obligation to make a summary determination to the extent that no triable issues of fact are raised (see CPLR 409 [b]; Fourth Hous. Co., Inc., 53 Misc.3d at 45, 39 N.Y.S.3d 350), Respondent's motion is granted and this proceeding is dismissed, as Petitioner lacks a conditional limitation that would permit early termination of Respondent's tenancy in the absence of a cure notice. Respondent's alternative request for an extension of time to file an answer is denied as moot.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Clinton J. Guthrie, J.
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