172 v. JOHN DOE JANE DOE (2026)

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion to dismiss and for further relief:

Papers Numbered

Notice of motion and affidavits annexed 8, 9

Notice of Cross Motion with affidavit/affirmation annexed 10, 11, 12

Replying affirmation 23

Exhibits. 13-20

Petitioner commenced the instant summary holdover proceeding seeking possession of Apartment 1K, from respondent BARBARA PEDROSA, JOHN DOE and JANE DOE, at 1479 Jesup Avenue, Bronx, New York 10452. The petition alleges that respondent, the rent-controlled tenant of record of the subject premises, was served with a predicate Notice of Landlord's Intention to Commence Proceeding to Recover Housing Accommodations Based on Non-Primary Residence of Rent Controlled Tenant Pursuant to City Rent and Rehabilitation Law Section 26-403(e)(2(I)(10) and The New York City Rent And Eviction Regulation Section

2200.2(f)(18).¹

Respondent retained counsel on October 1, 2025. (NYSCEF No. 6) On January 15, 2026, the parties stipulated that respondent would "supply documents to support respondent's claim for primary residence". (NYSCEF No. 7). Respondent produced two documents per that stipulation: a Con Edison bill from 2024, and a Social Security Award letter dated September 2024. Thereafter, respondent moved to dismiss and petitioner cross-moved to compel discovery. The court heard oral argument on the motion and cross-motion on June 1, 2026.

Respondent's Motion to Dismiss

Respondent moves herein to dismiss under CPLR § 3211(a)(7) claiming that the predicate notice is factually insufficient. Respondent argues that a predicate notice must specify facts, including an alternative address for respondent, in a non-primary residency case, so that the tenant can prepare a defense to the eviction action.

Petitioner opposes dismissal, arguing that it properly alleged the case specific allegations it knew of, namely, that petitioner has not known respondent's specific location for the last 3 years; respondent has had no open Con Edison account; that someone claiming to be respondent's sister told petitioner's agent that respondent does not live in the apartment any longer and it did not appear that the apartment was furnished for living purposes.

Discussion

The New York City Rent and Eviction Regulations (9 NYCRR) § 2204.3(b) require that every notice to vacate or surrender possession of a housing accommodation subject to rent control state the ground upon which the tenant's eviction is sought, as well as "the facts necessary to establish the existence of such ground." Kaycee West 113th Street Corp., v Diakoff, 160 AD2d 573 (1st Dept. 1990), First Sterling Corp. v Zurkowski, 142 Misc 2d 978 (App Term 1st Dept. 1989)

Respondent urges this court to dismiss, particularly, because petitioner did not allege a specific alternate address in the notice. In London Terrace Gardens LP v Heller, 40 Misc 3d 135[A] (1st Dept. 2009), 2009 NY Slip Op 52858[U], the court dismissed a nonprimary residency case which did not specify an alternate address, however, noted that a specified alternate location is not the sine qua non of pleading sufficiency in every nonprimary residence case (citation omitted). The court held, "the absence of such an allegation was fatal in these circumstances, where the notice did not "otherwise state [ ] case-specific facts tending to establish this particular tenant's alleged nonprimary residence" (Id.). [Emphasis added]

The notice in this case, by contrast, alleges numerous facts in support of petitioner's claim:

You are currently at an undisclosed location, and you have not resided in the subject premises for about three years.

There are some belongings, including but not limited to a table, desk, child's chair, bicycle, dresser, some small items, but there are no beds.

You have no current open account for electricity service at Con Ed.

In or about mid-December 2024, a person claiming to be your sister wanted access to your apartment.

You haven't been seen around for years for living purposes.

One of your sisters told management in or about mid-December 2024, that you don't live in the subject premises, but your nephew comes by from time to time.

There are unauthorized occupants(s) in the premises who is(are) not permitted to be in possession pursuant to Real Property Law section 235-f(3), as you are not living in the subject premises as your residence, yet alone as a primary residence.

Respondent has not set forth any material allegations within landlord's knowledge that it failed to include in the notice. Nor does respondent allege that she was misled as to the nature of this proceeding or was prejudiced in response to the landlord's petition. (See NYSCEF No. 9, First Avenue Properties v McLaughlin, 53 Misc 3d 149(A) (App. Term 1st Dept. 2016)) The predicate notice in this case is reasonable under the attendant circumstances, therefore respondent's motion to dismiss is denied. Hughes v Lenox Hill Hospital, 226 AD2d 4 [1st Dept 1996], lv denied, 90 NY2d 829 [1997])

Pursuant to CPLR § 3211(f) respondent is permitted to file an answer within 10 days after service of notice of entry of this order.

Petitioner's Cross-Motion to compel discovery

Petitioner cross-moves herein to compel discovery under CPLR § 3124 based on respondent's alleged failure to comply with the parties' informal discovery stipulation dated January 15, 2026. In that stipulation, respondent agreed to provide "documents to support respondent's claim for primary residence." (NYSCEF No. 7).

CPLR § 3124 provides for an order to compel if a party fails to comply with a request, notice, interrogatory, demand, question or order. No motion under CPLR § 408 was previously made. No document demand or discovery order preceded this motion. The court did not "so-order" the stipulation. The parties' informal discovery stipulation is not the equivalent of a notice, interrogatory, demand, question or order to serve as a basis of an order to compel.

Even if the court viewed the stipulation as a "request" for documents, petitioner has failed to show non-compliance. Respondent produced 2 documents. It is reasonable to conclude that respondent has no other documentation in support of her claim. No statements from respondent or her attorney indicate the existence of or withholding of other documents; nor has petitioner asserted that respondent has other documents in her possession. The cross-motion is therefore denied.

WHEREFORE, for all of the foregoing reasons, it is hereby

ORDERED that respondent's motion to dismiss is denied;

ORDERED, that respondent's motion to file an answer under CPLR § 3211(f), is granted;

ORDERED, that respondent shall, within 10 days of service of this order with notice of entry, serve and file her answer;

ORDERED, that petitioner's cross-motion to compel is denied; and

ORDERED that this matter is set down for a pretrial conference on November 5, 2026, at 9:30 am.

Bronx, New York

FOOTNOTES

1.   The predicate notice at issue states in pertinent part:1. On information and belief, you are currently at an undisclosed location, and you have not resided in the subject premises for about three years.2. On information and belief, there are some belongings, including but not limited to a table, desk, child's chair, bicycle, dresser, some small items, but there are no beds, and, upon information and belief, you have no current account for electricity service at Con Ed.3. In or about mid-December 2024, a person claiming to be your sister wanted access to your apartment, but you haven't been seen around for years for living purposes.4. One of your sisters told management in or about mid-December 2024, that you don't live in the subject premises, but your nephew comes by from time to time.There are unauthorized occupants(s) in the premises who is(are) not permitted to be in possession pursuant to Real Property Law section 235-f(3), as you are not living in the subject premises as your residence, yet alone as a primary residence

Elizabeth Donoghue, J.