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ABJ LENOX LLC v. “John Doe” and “Jane Doe”, Respondents-Undertenants. (2019)

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Civil Court, City of New York.

ABJ LENOX LLC, Petitioner-Landlord, v. Coumba FOFANA, Respondent-Tenant, “John Doe” and “Jane Doe”, Respondents-Undertenants.


Decided: July 26, 2019

Daniel P. Phillips, Esq., Belkin Burden Wenig and Goldman, LLP, 270 Madison Avenue, New York, NY 10016, 212-867-4466, Counsel for Petitioner, ABJ Lenox LLC Sandra Takami, Esq., Sanctuary for Families, Center for Battered Women's Legal Services, 30 Wall Street, 8th Floor, New York, NY 10005, 212-349-6009, ext. 250, Counsel for Respondent, Coumba Fofana

Recitation, as required by CPLR 2219 (a), of the papers considered in the review of this: Order to Show Cause to restore to the calendar; vacate default judgment and warrant; dismiss proceeding for failure to state a cause of action; alternatively interpose Verified Answer.

Papers Numbered

Affirmation in Support and Attached Exhibits 1

Affirmation in Opposition and Attached Exhibits 2

Affirmation in Reply and Attached Exhibits 3

This is a proceeding commenced by Petitioner against Respondents to recover possession of the premises located at 539 Lenox Avenue a/k/a 539 Malcolm X Boulevard, No.4E, New York, NY 10037. On November 28, 2018, Petitioner served Respondent with a Notice of Non-Renewal informing her it did not intend to renew her lease when it expired on February 28, 2019 because the subject premises is not occupied by Respondent as her primary residence. Respondent failed to vacate at the expiration of the lease and Petitioner commenced the instant proceeding on March 6, 2019, seeking a judgment of possession and issuance of a warrant of eviction on the basis of non-primary residence. Respondent failed to answer the petition or appear on the initial court date on March 28, 2019. On that date, the matter was adjourned to April 9, 2019 for inquest. The Court mailed a postcard to Respondent informing her of that date. Respondent again failed to appear on April 9, 2019 and an inquest was held, after which the Court issued judgment of possession in favor of Petitioner and a warrant forthwith, execution stayed for five days.

On April 23, 2019, Respondent, by her counsel, filed the instant Order to Show Cause (“OSC”) seeking restoration of the matter to the Court's calendar; vacatur of the default judgment and warrant;1 dismissal of the proceeding for failure to state a cause of action; and in the alternative, permission to interpose a Verified Answer. The OSC was returnable on May 16, 2019 and at that time Petitioner appeared through counsel and Respondent appeared with counsel. The Court set a briefing schedule for opposition and reply to the OSC and directed Respondent to pay three months use and occupancy by June 17, 2019. On June 17, 2019 the OSC was deemed submitted and decision was reserved.

Pursuant to CPLR § 5015(a)(1), a party seeking to vacate a default judgment must show both a reasonable excuse for failure to appear and a meritorious defense. Respondent alleges that she was out of the country for work when the Notice of Petition and Petition were served and was unaware that Petitioner began a court proceeding against her. Respondent maintains that she did not return to New York and to the subject premises until April 12, 2019, three days after the inquest, at which time she found the Notice of Petition and Petition affixed to her door and first became aware of the instant court proceeding. Petitioner argues in its opposition that Respondent was properly served and was aware of the court proceeding because the property manager emailed Respondent from court on March 28, 2019 and also emailed Respondent prior to the April 9th appearance. In her reply, Respondent provides airline ticket documentation which show that she left New York in early January 2019 and returned on April 12, 2019. Additionally, Respondent acknowledges her email correspondence with Petitioner's manager, but maintains that the email was not clear that a current legal action was pending, as she had been engaging in negotiations for a potential buyout if she were to vacate the subject premises.

Based on the foregoing, the Court finds that Respondent set forth a reasonable excuse for her failure to appear on both March 28th and April 9th, 2019, as she was not in the country or the state on either of those dates.

In support of a meritorious defense, Respondent contends that despite extended absences, she occupies the subject premises as her primary residence and that the Predicate Notice is defective. Respondent asserts that she is employed by UNICEF and is currently on a two-year work assignment that requires her to travel to and spend extensive time in Kinshasa, Democratic Republic of the Congo. Respondent claims that when she is not in Africa for work she returns to and resides at the subject premises. Respondent further contends the predicate notice is defective as it fails to contain fact-specific statements necessary to establish the premises is not her primary residence and the claims set forth in the Notice of Non-Renewal are vague and inadequate to provide a factual basis for the proceeding.

Petitioner argues that it proved during inquest that from March 31, 2018 through March 26, 2019, at least 26 unidentified individuals were observed coming in and out of the subject premises and that Respondent herself was not observed to be residing in the apartment. Petitioner further asserts that Respondent failed to furnish any documents, such as tax returns or bank statements, sufficient to prove primary residence. Petitioner maintains that the predicate notice served on Respondent on its face clearly establishes a cause of action for non-primary residence and is sufficiently pled and that Respondent would have the opportunity to seek additional information through a bill of particulars.

In reply to Petitioner, Respondent identified many of the 26 previously unidentified individuals captured on Petitioner's surveillance camera as her family and friends, namely her sister and son, and indicates that some of the pictures show Respondent herself at times when she was home from Africa.

The Court finds that Respondent has set forth a meritorious defense. Respondent maintains that she spends time in Africa as a result of her employment and otherwise primarily resides at the subject premises. Courts have held that business travel is an exception to the requirement that a tenant must spend 183 nights per year in order to establish that an apartment is their primary residence and that travel for work is permitted so long as the tenant otherwise maintains their primary residence at the subject premises (see Chelsmore Apts. v. Garcia, 189 Misc 2d 542 [NY Civ Ct New York County 2001]; 9 NYCRR § 2204.6[d][1][iv], 9 NYCRR § 2523.5[b][2][iv] ). Accordingly, the portion of the OSC seeking restoration to the calendar and vacatur of the default judgment is granted.

Respondent also seeks dismissal of the proceeding pursuant to CPLR § 3211(a)(7) for failure to state a cause of action and provide facts sufficient to establish a non-primary residence case. Respondent's arguments for dismissal are the same as those set forth as her meritorious defense to vacate the default judgment: that the predicate notice is defective and that she does maintain the subject premises as her primary residence except for her work-related travel. Petitioner's arguments opposing dismissal are the same as well.

A predicate notice in a summary proceeding must be “clear, unambiguous and unequivocal in order to serve as the catalyst which terminates a leasehold” (Ellivkroy Realty Corp. v. HDP 86 Sponsor Corp., 162 AD2d 238 [1st Dept 1990]). A predicate notice in a summary proceeding need not lay bare a landlord's trial proof, but must adequately advise the tenant so that the tenant is able to understand the specific claim and frame a defense (see McGoldrick v. DeCruz, 195 Misc 2d 414 [1st Dept 2003]; 297 Lenox Realty Company v. Babel, 19 Misc 3d 1145[A] [NY Civ Ct Kings County 2008]). Further, “the appropriate standard for assessment of the adequacy of notice is one of reasonableness in view of all attendant circumstances” (297 Lenox Realty Company, Id. at 2).

The Court finds the predicate notice proper. The Notice of Non-Renewal sufficiently sets forth that non-primary residence is the basis for the non-renewal and specifically states that Petitioner believes Respondent resides in Kinshasa, Democratic Republic of the Congo; that Respondent has not been seen entering or leaving the apartment since April 2018, except for two weeks in September 2018; and that upon information and belief the apartment is occupied by other individuals. Any other information that Respondent believes should have been included in the notice primarily concerns evidentiary matters that could be obtained through discovery (see McGoldrick, 195 Misc 2d 414 at 415; City of New York v. Valera, 216 AD2d 237 [1st Dept 1995]).

Accordingly, the portion of the OSC seeking dismissal of the proceeding is denied. The portion requesting the Court to allow Respondent to interpose a Verified Answer is granted. The matter is restored to the calendar and the default judgment entered against Respondent in favor of Petitioner on April 9, 2019 is hereby vacated. Respondent is to file the Verified Answer with the Court and serve the same on Petitioner by August 16, 2019. The matter is adjourned to September 12, 2019 at 9:30 am, Part U, for all purposes.

This constitutes the Decision and Order of the Court.


1.   Though the Court issued a warrant forthwith at inquest, no warrant has been issued as of yet due to Respondent filing the instant OSC prior to the Marshal requisition being filed. When the Marshal submitted the warrant request, the matter had already been placed back on the Court's calendar and thus the warrant request was denied.

Ta-Tanisha D. James, J.

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