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Civil Court, City of New York,

Monica MCKAY, Petitioner, v. Toni FARQUHARSON, “John Doe,” and “Jane Doe,” Respondents.

L & T Index No. 301227/20

Decided: July 15, 2022

For Petitioners: Elan Layliev, Esq For Respondents: Alex Jacobs, Esq, Queens Legal Services

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion

Papers Numbered

Notice of Motion and Affirmation 1 NYSCEF Doc 25, 26

Affirmation in Opposition 2 NYSCEF Doc. 29

Replying Affirmation 3 NYSCEF Doc 30, 31

Procedural History

This is a summary holdover proceeding filed on or about November 4, 2020. The subject premises are a two-family house. The premises are occupied by the owner and the respondent, a recipient of a NYCHA Section 8 voucher. On or about June 24, 2020, petitioner issued a predicate notice entitled Notice of Non-Renewal. The notice stated that respondent must vacate on or before September 30, 2020. Respondent did not vacate. Petitioner filed this holdover case.

Respondent filed a pro-se Answer and a Hardship Declaration. Pursuant to the COVID-19 Emergency Eviction and Foreclosure Prevention Act (CEEFPA) L. 2021, c. 417, the proceeding was stayed through January 15, 2022.

On or about February 21, 2022, petitioner filed a motion to restore this matter to the trial calendar. (Motion Seq. No.1) On or about April 11, 2022, respondent, now represented by counsel, filed a motion to dismiss pursuant to CPLR § 3211(a)(1) or in the alternative, leave to interpose an amended Answer pursuant to CPLR § 3025(b). (Motion Seq. No.2)

The April 12, 2022 Decision and Order granted petitioner's motion to restore the case to the trial calendar, denied respondent's motion to dismiss without prejudice and allowed respondent to interpose an amended answer. The case was transferred to the Trial Part.

On or about April 27, 2022, petitioner issued a second predicate notice entitled Ninety (90) Day Notice of Termination. This predicate notice demands that respondent surrender possession on or before July 31, 2022.

On May 2, 2022, the case appeared in the Trial Part for a pre-trial conference. The matter could not be resolved and it was adjourned to June 9, 2022 for trial. On or about June 6, 2022, respondent filed a motion seeking leave to amend the answer pursuant to CPLR § 3025(b). (Motion Seq. No. 3) Respondent's motion includes a new amended Proposed Answer and Counterclaims. Petitioner uploaded a Notice of Rejection of Answer; however, a Notice of Rejection does not constitute a response to the motion now before the Court.

Respondent's Second Motion to Amend

Respondent moves for leave to amend the answer after petitioner issued the second predicate notice dated April 27, 2022. Respondent argues that this defense is known to the petitioner. Petitioner prepared the second predicate notice. There is no significant prejudice to the petitioner “where the [p]etitioner caused the defense to become available during the pendency of the proceeding.” (NYSCEF Doc. 25; ¶ 9). Respondent argues that the new termination notice vitiates the “extant proceeding.” (NYSCEF Doc. 25; ¶5).

Petitioner's Opposition

Petitioner argues that the Court should exercise its discretion and deny the request for leave to amend the answer again. Petitioner argues that respondent seeks to interpose a defense that is not accompanied by a “reasonable excuse for his delay in moving to amend ․ and [c]ounsel had full knowledge of the April 26, [sic] 2022 Notice of Termination.” (NYSCEF Doc. 29; ¶24). Petitioner argues that there is no affidavit of merit in support of the motion.

Conclusions of Law

CPLR § 3025 (b) provides:

A party may amend his or her pleading or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances. Any motion to amend or supplement pleadings shall be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading.

The Court must determine whether the proposed amended answer, comprised of a new defense raised by the issuance of a second predicate notice, causes significant prejudice to the opponent. The second predicate notice cannot be ignored; it is a predicate notice with a vacate date of July 31, 2022. The very nature of the second predicate notice works to vitiate the first predicate notice. The second predicate notice raises a procedural defense that goes to the heart of the holdover. Absent a proper predicate notice, which is a condition precedent to the termination of the tenancy, the petition be dismissed. Chinatown Apartments, Inc. v. Chu Cho Lam, 51 NY2d 786 (1980).

Leave to amend a pleading shall be freely given unless the court finds significant prejudice to the other side. Edenwald Contracting Co. v. New York, 60 NY2d 957 (1983). The second predicate notice does not cause significant prejudice to the petitioner. It was petitioner who issued the second predicate notice before the trial was scheduled to commence. Said action was within the control of the petitioner and as such leave to amend the answer is proper and respondent's motion is granted.

Pursuant to CPLR § 409(b) and upon review of the petition, the newly amended answer and the second predicate notice, this Court is required to dismiss the proceeding. The second predicate notice vitiates the predicate notice in the pending proceeding.

CPLR § 409 (b) provides: The court shall make a summary determination upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised.

The second predicate notice indicates there are no triable issues of fact that are raised or that can be raised because the first predicate notice has been vitiated. As a matter of law, the second predicate notice is inconsistent with the underlying predicate notice. The second predicate notice calls for a surrender date of July 31, 2022.

Petitioner vitiated the predicate notice by issuing a subsequent Ninety (90) Day Notice of Termination dated April 27, 2022. The subsequent predicate notice now governs, making the prior Notice of Non-Renewal an invalid predicate notice. It is well settled that “notice of termination of a lease must be clear, unambiguous and unequivocal if it is to function as the catalyst which terminates the leasehold. (Spencer v. Faulkner, 65 Misc 2d 298 (Civ. Ct. Kings Co. 1971); 28 Mott St. Co. v. Summit Import Corp., 64 Misc 2d 860 (Civ. Ct. NY Co. 1970).” Kirschenbaum v M-T-S Franchise Corp., 77 Misc 2d 1012, 1014 (Civ. Ct. NY Co. 1974); See also, Buffalo Urban Renewal Agency v. Lane Bryant Queens, Inc., 90 AD2d 976, 977, affd 59 NY2d 825 (1982).

Absent a proper predicate notice and pursuant to CPLR § 409(b), the petition must be dismissed without prejudice. See Torres v Sedgwick Avenue Dignity Developers LLC, 74 Misc 3d 1209[A], (Civ Ct., Bx Co. 2022) citing Triangle Pac. Bldg. Products Corp., v National Bank of North America, 62 AD2d 1017 (2nd Dept 1978), holding that CPLR § 409 and § 410 mandate a trial only of those issues “which cannot be disposed of by summary determination upon the pleadings.”

Pursuant to CPLR 409(b), it is the court's duty to search the record and make summary determinations where appropriate. See Hilda Townsend Revocable Trust v Johnson, 67 Misc 3d 1207(A) (Civ. Ct. Queens Co. 2020); 1646 Union, LLC v. Simpson, 62 Misc 3d 142(A), 2019 NY Slip Op 50089(U) (App. Term 2d. Dept. 2019) and 901 Bklyn Realty, LLC v. Woods-Najac, 65 Misc 3d 158(A), 2019 NY Slip Op 51976(U) (App. Term 2d. Dept. 2019) See 1091 River Avenue LLC v Platinum Capital Partners, Inc., 82 AD3d 404 (1st Dept. 2011).

The Court understands that this is a two-family house, and that the petitioner will commence another case after the time provided in the second predicate notice. The respondent has interposed counterclaims and those counterclaims are now severed; respondent may interpose said claims when the next holdover petition is filed. As the parties will likely continue with their litigation, it is in the interest of judicial economy to keep these claims together.

Accordingly, it is

ORDERED that respondent's motion for leave to amend the answer is granted, and it is

ORDERED that the petition is dismissed without prejudice pursuant to CPLR § 409(b) and the respondent's counterclaims are severed to be interposed in the subsequent petition, and if a petition is not filed then respondent may move to calendar the counterclaims.

This Decision and Order will be uploaded to NYSCEF.

This constitutes the Decision and Order of the Court.*

So Ordered.

Enedina Pilar Sanchez, J.

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Docket No: L & T Index No. 301227/20

Decided: July 15, 2022

Court: Civil Court, City of New York,

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