FEN XIU CHEN, c/o Cheng H Zheng, Petitioner-Landlord, v. Gil SALVADOR, David Garcia, Paula Barreto, John Doe and Jane Doe, Respondents-Tenants.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of respondent Gil Salvador's motion to dismiss, or in the alternative, for leave to interpose a late answer, and petitioner's cross motion for a final judgment of possession, for a warrant of eviction, and for a money judgment for rent and other charges:
Notice of Appearance and Motion & Affirmation/Affidavit/Exhibits Annexed 1
Notice of Cross Motion & Affirmation (in Opposition and in Support)/Affidavit/
Exhibits Annexed 2
Affirmation in Opposition (to Cross Motion) & Exhibits Annexed 3
Upon the foregoing cited papers, the decision and order on respondent's motion and petitioner's cross motion (consolidated for determination herein) is as follows.
This is a residential holdover proceeding based on allegations of breach and termination of the lease between the parties. The proceeding first appeared on the Queens HMP calendar on January 26, 2021, as the petition included allegations suggesting nuisance-type conduct corresponding to the exception to the stay of eviction proceedings set out in Part A, Section 9 of the COVID-19 Emergency Eviction and Foreclosure Prevention Act [L 2020, ch 381] (hereinafter “EEFPA”). Respondent Gil Salvador was referred to Queens Legal Services for representation and the proceeding was adjourned to February 23, 2021 in Part E. On February 23rd, Queens Legal Services appeared for Mr. Salvador and made a motion to dismiss, alleging that the predicate notices (notice to cure and notice of termination) were defective and that the proceeding should be dismissed pursuant to CPLR §§ 3211(a)(1), 3211(a)(2), and/or 3211(a)(7), or in the alternative, to interpose a late answer. Petitioner opposed the motion and cross-moved for a judgment and for other relief. After the cross motion was opposed, the court heard argument on both motions via Microsoft Teams on May 10, 2021 and reserved decision.
Respondent first seeks dismissal on the basis that the notice of termination does not state specific facts relating to whether the conduct alleged in the notice to cure had been cured. Respondent relies heavily on 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], which held that a termination notice “was defective because it failed to allege that the defaults specified in the notice to cure, which were curable, had not been cured during the cure period.” [Citing Hew-Burg Realty v. Mocerino, 163 Misc 2d 639 [Civ Ct, Kings County 1994].] Here, the notice to cure, dated January 20, 2020, details the presence of pit bulls alleged to be a nuisance and an allegation that respondents are conducting a dog-breeding business. The cure notice references one provision of the lease, Paragraph 1, which states, “1. Use. The premises must be used to live in only and for no other reason.” Near the end of the cure notice, there is a directive:
“You are hereby required to (i) take necessary actions to cease the nuisance createdby your dogs to your neighbors; and (ii) cease the illegal use of the Premises immediately within 14 days. You are also required to reimburse any violation penalties and legal fee costs to Landlord due to your illegal actions and breach ofthe Lease.”
This directive is followed by a statement that “if you fail to cure said violation fourteen (14) or more days from service of this Notice upon you, Landlord will elect to terminate your tenancy in accordance with the applicable provisions of law.” On February 24, 2020, petitioner issued a notice of termination, which restates the allegations in the notice to cure word-for-word and concludes that “you fail to cure said violation [in the notice to cure] within fourteen (14) days from Fourteen (14) Day Notice of Cure Violations of Substantial Obligation of Tenancy was served upon you on or about January 23, 2020.” The notice of termination does not include any allegations of conduct after the notice to cure issued and does not describe in any detail how respondents failed to cure or how petitioner determined that the conduct had not been cured. See Hew-Burg Realty, 163 Misc 2d at 641 [“[N]o facts whatsoever are set forth in the notice of termination as to respondent's conduct during or after the cure period.]. As the court held in 2704 Univ. Ave. Realty Corp. v. Thompson, 63 Misc 3d 1222[A], 2019 NY Slip Op 50652[U] [Civ Ct, Bronx County 2019], “by simply stating boilerplate language that Respondent ‘failed to comply’ with its notice to cure, without alleging any additional facts after expiration of the cure period, Petitioner does not apprise Respondent with specific particularity of the facts which it believes establish its prima facie case.” See also 76 W. 86th St. Corp. v. Junas, 55 Misc 3d 596, 600 [Civ Ct, NY County 2017]; Sudimac v. Beck, 63 Misc 3d 1208[A], 2019 NY Slip Op 50442[U] [Civ Ct, Queens County 2019]; but cf. 1123 Realty LLC v. Treanor, 62 Misc 3d 326, 334-335 [Civ Ct, Kings County 2018].
The lack of specific facts relating to cure is particularly grave here because the notice to cure gives an open-ended cure opportunity (“if you fail to cure said violation fourteen (14) or more days from service of this Notice upon you, Landlord will elect to terminate your tenancy in accordance with the applicable provisions of law” [emphasis added]). Without particulars relating to the lack of a cure, it is impossible to surmise when petitioner regarded the cure opportunity to have ended and how that was determined. See e.g. ShopRite Supermarkets, Inc. v. Yonkers Plaza Shopping, LLC, 29 AD3d 564, 566 [2d Dept 2006] [“ ‘The purpose of a notice to cure is to specifically apprise the tenant of claimed defaults in its obligations under the lease and of the forfeiture and termination of the lease if the claimed default is not cured within a set period of time.’ ”] [Quoting Filmtrucks, Inc. v. Express Indus. & Term. Corp., 127 AD2d 509, 510 [1st Dept 1987] [Emphasis added]; Westhampton Cabins & Cabanas Owners Corp. v. Westhampton Bath & Tennis Club Owners Corp., 62 AD3d 987, 988 [2d Dept 2009] [Notice to cure must inform tenant of “the conduct required to prevent eviction”].]
Respondent also argues that the predicate notices are defective insofar as they do not reference lease provisions providing for termination for the conduct alleged and/or because they lack specificity in relation to the allegations stated. As to the first point, the Court of Appeals has held that a specific lease provision supporting termination for the alleged conduct must be cited in a notice to cure. See Chinatown Apts., Inc. v. Chu Cho Lam, 51 NY2d 786, 788 ; see also Westhampton Cabins & Cabanas Owners Corp., 62 AD3d at 988 [“A notice to cure is insufficient where it fails to reference the specific section of the lease that addresses the condition.”] Here, only Paragraph 1 of the lease is cited in the predicate notices. Although petitioner attempts to reference an additional provision, Paragraph 19A, which provides for termination for “improper conduct,” petitioner is bound by the language of the notices, which may not be amended. See DLB of NY, LLC v. Billan, 70 Misc 3d 143[A], 2021 NY Slip Op 50158[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Chinatown Apts., Inc., 51 NY2d at 787-788. Therefore, since only Paragraph 1 is invoked as a basis for termination, the court must assess whether the conduct alleged supports a cause of action pursuant to that provision.
The relevant language of Paragraph 1 is straightforward: “The premises must be used to live in only and for no other reason.” The clear inference is that the premises are being rented for residential purposes only. The predicate notices reference a neighbor observing puppies being kept in the basement and “five or six adult dogs being kept in [the] house simultaneously.” Based on these facts, the notices conclude, “the Landlord reasonably believes that you are conducting a business as a breeder.” However, other than the number of dogs, no facts indicating business practices are alleged. Black's Law Dictionary defines “business” as “commercial enterprise carried on for profit; a particular occupation or employment habitually engaged in for livelihood or gain.” (Black's Law Dictionary [11th ed 2019], business). Nothing alleged in the predicate notices suggests, other than through speculation, the existence of a commercial entity being conducted for profit in the subject premises. Additionally, insofar as improper commercial use of a residential property is concerned, courts have required that the “business material affect[s] the character of the building, materially damage[d] or burden[ed] the property or materially disturb[ed] other tenants.” 121 Irving MGM LLC v. Perez, 56 Misc 3d 694, 698 [Civ Ct, Kings County 2017], affd 63 Misc 3d 157[A], 2019 NY Slip Op 50835[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; see also Nissen v. Wang, 105 Misc 2d 251 [Civ Ct, NY County 1980]. Since the predicate notices do not address these factors in a non-conclusory fashion and do not specify any details about commercial activity, the court holds that the predicate notices do not plead any cognizable cause of action under a provision of the lease that would permit early termination. See Fourth Hous. Co. Inc. v. Bowers, 53 Misc 3d 43, 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Perrotta v. Western Regional Off-Track Betting Corp., 98 AD2d 1 [4th Dept 1983].
Considering the magnitude of these defects, the court is unable to hold, as petitioner urges, that the predicate notices are reasonable in view of the attendant circumstances present here. See Hughes v. Lenox Hill Hosp., 226 AD2d 4, 18 [1st Dept 1996], lv denied 90 NY2d 829 . Since a summary holdover proceeding cannot proceed upon defective predicate notices (which are incapable of being amended), Respondent's motion to dismiss is hereby granted. Bray Realty, LLC v. Pilaj, 59 Misc 3d 130[A], 2018 NY Slip Op 50426[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Chinatown Apts., Inc., 51 NY2d at 787-788. Respondent's motion to interpose a late answer is denied as moot and without prejudice.
PETITIONER'S CROSS MOTION
Petitioner seeks a judgment of possession, warrant of eviction, and a money judgment for rent, use and occupancy, and other charges against all respondents. As the court has held that the predicate notices are defective, petitioner's motion must be denied. The Appellate Term, Second Department has held, in a summary proceeding brought under Article 7 of the RPAPL, “relief can be granted to a petitioner only where all the elements of the petitioner's cause of action have been made out, a requirement which is sometimes referred to as ‘jurisdictional[.]’ ” 1646 Union, LLC v. Simpson, 62 Misc 3d 142[A], 2019 Slip Op 50089[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]. Moreover, although petitioner seeks relief against non-appearing respondents who are in default, a default judgment cannot be granted on facially insufficient pleadings. See Gristmill Realty, LLC v. Roa, 69 Misc 3d 142[A], 2020 NY Slip Op 51358[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2020]; Lakeview Affordable Hous., LLC v. Turner, 66 Misc 3d 142[A], 2020 NY Slip Op 50163[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2020]; Kentpark Realty Corp. v. Lasertone Corp., 3 Misc 3d 28, 31 [App Term, 2d Dept, 2d & 11th Jud Dists 2004]. Accordingly, petitioner's motion is denied in its entirety, without prejudice to its claims in any other summary proceeding or plenary action.
In accordance with the determinations herein, respondent's motion to dismiss is granted insofar as petitioner's predicate notices are defective and fail to state a cause of action. Respondent's motion to interpose a late answer is denied as moot and without prejudice. Petitioner's cross motion is denied without prejudice. This holdover proceeding is hereby dismissed without prejudice as against all respondents. See CPLR § 409(b); Bahar v. Schwartzreich, 204 AD2d 441, 443 [2d Dept 1994] [“In a special proceeding, where no triable issues of fact are raised, the court must make a summary determination on the pleadings and papers as if a motion for summary judgment were before it”]. The clerk is directed to enter a judgment in favor of respondents. See CPLR § 411.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Clinton J. Guthrie, J.
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