1123 REALTY LLC v. TREANOR

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Civil Court, City of New York.

1123 REALTY LLC, Petitioner, v. Robert TREANOR, et al., Respondent.

76811-17/KI

Decided: October 05, 2018

Andrew A. Ortiz, Esq., Brooklyn Legal Services, Attorney for respondent, 105 Court Street, 4th Floor, Brooklyn, NY 11201, (718) 237-5501 Cris L. Gottlieb, Esq., Cohen Hurkini Ehrenfeld Pomerantz & Tenebaum, LLP, Attorney for petitioner, 25 Chapel Street, Suite 705, Brooklyn, NY 11201, (718) 596-9000

In this holdover proceeding, Respondent-tenant Robert Treanor moves for an order, pursuant to CPLR R. 3211 (a) (7), dismissing the petition based on purported defects in the predicate notice or for leave to submit a late answer. Petitioner opposes that branch of motion seeking dismissal.

 FACTUAL AND PROCEDURAL BACKGROUND

The following facts are not disputed:

Petitioner commenced this summary holdover proceeding on July 18, 2017 to recover possession of the subject premises known as 1123 Avenue K, Apartment 5-A in Brooklyn. Petitioner served Respondent with a notice to cure on May 18, 2017. The notice, which is appended to the petition, states that “unless you cure and correct the conditions stated below within FIFTEEN (15) DAYS after service of this notice, the landlord/owner will proceed [to] terminate your tenancy and lease ․” The notice, which is undated, alleges, in relevant part:

“[T]hat you ․ are harboring a dog (specifically a pit-bull) within your apartment, which is in violation of Paragraph 20 (6) of your original lease dated May 9, 2005. This also constitutes a violation of Section 2524.3 of the Rent Stabilization Code ․

[T]hat you continue to fail to provide access to the landlord as requested heretofore to inspect and repair [which] has resulted in violation(s) being imposed and remaining on the building's history with the Department of Housing and Preservation and Development (HPD) based on your actions. Said conduct is in violation of Rent Stabilization Code Section 2524.3 (e) ․

[T]hat upon your failure to cure and correct the aforementioned substantial obligation of your lease and tenancy on or before [blank space], 2017, the landlord will elect to terminate your lease and tenancy.” 1

On June 14, 2017, Petitioner served Respondent with an undated notice of termination. The notice provides, in relevant part:

“[A] notice to cure was served upon you to afford you an opportunity within the time stated therein to cure (remove the dog) ․ However, you have failed to do so ․

[T]hat you continue to fail to provide access to the landlord as requested heretofore to inspect and repair and that such failure has resulted in violation(s) being imposed and remaining on the building's history with [HPD] based on your actions.

[T]hat you have caused, suffered, permitted and maintained your apartment in a[n] unsafe and unsanitary manner with newspapers, clothing, bikes, furnishings, boxes, refuse, papers, garbage, and miscellaneous debris, etc., in most rooms of the apartment which is cluttered to such an extreme in some areas from floor to ceiling, which will not allow passage and covers the windows. This condition constitutes a fire hazard, [sic] and endangers the lives and safety of you and other occupants of the subject building. The excessive clutter in your apartment also allows for the harboring and breeding of vermin and insects, which can cause infestations and infest other parts of the building.

This conduct is in violation of the terms of the law, more specifically, that [sic] constitutes a nuisance, in that you are causing, suffering and permitting conduct which interferes with the rights, safety, comfort, and convenience of other tenants in the building, and it is in violation of Section 2524.3(b) of the Rent Stabilization Code.

[E]ven if you cure by removing the dog, the landlord reserves its rights to terminate your tenancy based on nuisance conduct as stated above.”

 ARGUMENTS

On his motion, Respondent contends that the undated notice to cure is fatally defective because it does not provide him with a date certain by which to cure the above conditions. Moreover, Respondent argues that the termination notice is also defective as a matter of law because it fails to cite any specific incidents or conduct that occurred after the notice to cure. Should this court deny his motion to dismiss, Respondent — previously self-represented — seeks leave to interpose a late answer through counsel.

In opposition, Petitioner counters that the notice to cure is unambiguous as it provided Respondent 15 days from the date that the notice was served to remedy the no-pet violation. Moreover, Petitioner contends that the notice of termination is sufficient because it adequately apprises Respondent of the three grounds for terminating his tenancy. Specifically, in support of the failure to provide access claim, Petitioner relies on a printout of three, undated violations for the subject premises from the HPD website, which was annexed to the termination notice. Lastly, while it opposes dismissal, Petitioner does not oppose that part of the motion seeking leave to interpose a late answer.

 DISCUSSION

“[I]n considering a motion to dismiss pursuant to CPLR R. 3211 (a) (7) [based on failure to state a claim], the court should accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Tirpack v. 125 N. 10, LLC, 130 AD3d 917, 918 [2d Dept 2015] [internal quotations omitted] citing Leon v. Martinez, 84 NY2d 83, 88 [1994] ). “The test to be applied is whether the [petition] gives sufficient notice of the transactions, occurrences, or series of transactions or occurrences intended to be proved and whether the requisite elements of any cause of action known to our law can be discerned from its averments” (see JP Morgan Chase v. J.H. Elec. of New York, Inc., 69 AD3d 802, 803 [2d Dept 2010] ).

“[S]ervice of a proper notice of intention to terminate occupancy [is] a condition precedent to the termination of [a] tenancy ․” (see Chinatown Apartments, Inc. v. Chu Cho Lam, 51 NY2d 786, 788 [1980] ). For rent-stabilized units, section 2524.2 of the Rent Stabilization Code (RSC) ( [9 NYCRR § 2520 et seq ] ) provides, in relevant part, that:

(b) Every notice to a tenant to vacate or surrender possession of a housing accommodation shall state the ground under section 2524.3 ․ of this Part, upon which the owner relies for removal or eviction of the tenant, the facts necessary to establish the existence of such ground, and the date when the tenant is required to surrender possession.

As referenced above, RSC § 2524.3 provides that “an action or proceeding to recover possession of any housing accommodation may only be commenced after service of the notice required by section 2524.2 of this Part, upon one or more of the following grounds ․ as follows:

(a) The tenant is violating a substantial obligation of his or her tenancy other than the obligation to surrender possession of such housing accommodation, and has failed to cure such violation after written notice by the owner that the violations cease within 10 days ․

(b) The tenant is committing or permitting a nuisance in such housing accommodation ․

(e) The tenant has unreasonably refused the owner access to the housing accommodation for the purpose of making necessary repairs or improvements required by law ․ provided, however, that ․ such refusal shall not be a ground for removal or eviction unless the tenant shall have been given at least five days' notice of the inspection or showing ․”

As an initial matter, Respondent does not dispute in his motion that he was served with the notice to cure on May 18, 2018. The notice states that Respondent had “15 days from service of this notice” to remedy the curable conditions alleged. Contrary to Respondent's argument, the fact that the date certain in the cure notice was left blank does not render the notice ambiguous or equivocal since Respondent is left with only one statement as to when he was to cure: the 15th day after May 18, 2018, that is, June 3, 2018. Thus, the notice to cure is not defective as a matter of law (see e.g. 40 E. 68th St. Co. v. Habbas, 17 Misc 3d 1101(A) [Civ Ct, New York County 2007] aff'd 22 Misc 3d 135(A) [App Term, 1st Dept 2009] [finding notice to cure sufficiently unambiguous despite internal inconsistencies because the notice mentions only one date to cure] ).

As to the sufficiency of the notice of termination, Respondent correctly asserts that said notice fails to state any specific incidents or conduct that occurred after the cure date. Respondent contends that Petitioner's failure to include allegations to support the termination ground renders the notice of termination insufficient. In essence, Respondent urges this court to adopt a bright-line rule that — irrespective of the adequacy of the notice to cure or type of ground alleged — every termination ground lacking a factual predicate fails to state a cause of action.

But the test articulated by this Appellate Term for evaluating the sufficiency of termination notices is whether the notice is “reasonable in view of the attendant circumstances” (see 323 3rd St. LLC v. Ortiz, 13 Misc 3d 141(A) [App Term, 2d Dept 2006] citing Hughes v. Lenox Hill Hosp., 226 AD2d 4, 18 [1st Dept 1996] lv. denied, 90 NY2d 829 [1997] ). Unlike a bright-line rule, a test of reasonableness is fact-specific and based on the totality of the circumstances (see e.g. Ohio v. Robinette, 519 US 33, 39, 117 S Ct 417, 421, 136 L Ed 2d 347 [1996] ). When determining if a termination notice has met this standard, courts have considered the following:

• Whether the termination notice, in conjunction with the notice to cure (if any), adequately apprised the tenant as to the grounds upon which it was based, thus permitting tenant to prepare a legal defense; 2

• The likelihood that Petitioner could have ascertained in good faith that a cure was not timely effectuated; 3

• Whether the facts underlying the termination grounds are exclusively within either party's knowledge; 4 and

• The liberality in granting discovery for the grounds upon which the termination of the tenancy is based.5

Contrary to Respondent's argument, this Appellate Term's decision in 31-67 Astoria Corp. v. Landaira does not support a bright-line rule requiring new facts for every termination ground in every termination notice. In Landaira, the petitioner alleged a violation of a substantial obligation of the tenancy, nuisance, and denial of access to make necessary repairs (see 54 Misc 3d 131(A) [App Term, 2d Dept 2017] ). Landaira restated the general rule embodied in § 2524.2 (b) that “a termination notice that fails to set forth the facts upon which the landlord relies for eviction is defective.”

But Landaira also relies on Oxford Towers Co. v. Leites (41 AD3d 144 [1st Dept 2007] ), which holds that a reasonableness standard governs the sufficiency of a termination notice.6 Additionally, Landaira is distinguishable from the instant proceeding because the notice of termination there neglected to include even the bare assertion that the tenant failed to cure the conditions complained of. Indeed, the court expressly granted dismissal on this narrow ground (see 54 Misc 3d 131(A) [“the termination notice at issue was defective because it failed to allege that the defaults specified in the notice to cure, which were curable, had not been timely cured ”] [emphasis added] ).

On the one hand, requiring a factual predicate in termination notices discourages petitioners from bringing baseless claims in an already burdened court (see e.g. 76 West 86th Street Corp. v. Junas (55 Misc 3d 596, 600-601 [Civ Ct, Kings County, 2017] ). On the other hand, invalidating an otherwise proper notice solely because it lacks facts to support each individual ground—irrespective of the sufficiency of the notice to cure or the type of ground alleged—works against the modern trend by appellate courts that predicate notices be viewed less restrictively (see Daniel Finkelstein & Lucas A. Ferrara, Landlord and Tenant Practice in New York § 15:97 [West's NY Prac Series, 2018-2018 ed] [citing Hughes v. Lenox Hill Hosp., 226 AD2d 4, 17 [1st Dept 1996]; D.K. Prop., Inc. v. Mekong Rest. Corp., 187 Misc 2d 610, 611 [App Term, 1st Dept 2001]; Oxford Towers Co., LLC v. Leites, 41 AD3d 144, 144 [1st Dept 2007] ).

As mentioned above, the grounds for terminating a rent-stabilized tenancy vary from straightforward credibility determinations—as in cases involving the installation of an appliance or harboring a pet in violation of the lease—to complex evidentiary presentations—as in the case of owner's use or an illegal sublet. Although a predicate notice's inclusion (or lack thereof) of facts to support a termination ground may be unreasonable under the circumstances, this court holds that the absence of such allegations does not render the notice per se deficient. Rather, the better rule—and one that comports with modern precedent—is a case-specific approach that considers the above factors in determining whether the notice is reasonable under the attendant circumstances.

According Petitioner the benefit of every possible favorable inference, as it must on a motion to dismiss, this Court finds that the instant termination notice with respect to the no-pet violation is reasonable. Specifically, the notice to cure at bar sufficiently apprises Respondent of the basis for terminating his tenancy based on harboring a dog in violation of a specified lease provision. Additionally, the proof necessary to show or defend against a no-pet ground is relatively straightforward. Respondent can frame a defense against this claim because the question at trial is a basic one: whether he kept a dog at the subject premises beyond the cure date. Respondent also possesses the information necessary for this defense including if or when he removed the dog from the premises or whether he even harbored a dog at all. To the extent that Respondent lacks specificity into the facts underlying the claim, such information is better obtained from a bill of particulars (see e.g. City of New York v. Valera, 216 AD2d 237, 238 [1st Dept 1995]; Chelsea 19 Assoc. v. Coyle, 22 Misc 3d 140(A) [App Term 2009] ).

Moreover, in view of the six-day period between the cure date and the notice of termination, it cannot be said as a matter of law that Petitioner lacked good faith in determining whether a cure was timely effectuated (compare Junas, 55 Misc 3d at 599-600). Thus, weighing the factors in accordance with the standard of review on a motion to dismiss, this Court finds that Petitioner has sufficiently stated a claim for possession on this ground.

In contrast, the termination ground based on failure to provide access is unreasonable. Namely, § 2524.3 (e) requires that, prior to terminating the tenancy, the tenant be afforded at least five days' advanced notice for the parties to arrange a mutually convenient appointment for an inspection of the premises. Here, the notice of termination is bereft of specific dates and times when access was allegedly sought by Petitioner. Even if the notice to cure was meant to serve as the requisite 5-day notice, the notice of termination nevertheless fails to state whether an inspection appointment was agreed to and, if so, whether Respondent failed to provide access on the agreed-upon date. Thus, Respondent is entirely unable to frame a defense at trial due to the lack of particularity in either predicate notice.

Petitioner's reliance on the printout of purported HPD violations does not salvage the termination notice since the printout is devoid of dates when such violations were issued. More importantly, the printout does not go to the crux of Petitioner's claim: that it was Respondent's failure to provide access to inspect and repair violations—and not the existence of these violations—that warrant termination of his tenancy.

While information relevant to the no-pet and failure to give access grounds can both be obtained from a bill of particulars, the need for Petitioner to state facts at the outset in support of the former is less compelling than for the latter. Specifically, preparing a defense that Respondent provided meaningful access when requested clearly entails a more detailed evidentiary showing in comparison to the failure to remove a dog by a date certain. Thus, after weighing the above considerations, this Court concludes that the notice of termination with respect to the access ground is unreasonable under the circumstance and is, therefore, fatally defective.

Turning to the final termination ground, it is well-established that “[a] nuisance for purposes of the Rent Stabilization Code, is a condition that threatens the comfort and safety of others in the building and key to the definition is a pattern of continuity or recurrence of objectionable conduct” (see CHI-AM Realty, Inc. v. Guddahl, 7 Misc 3d 54, 55 [App Term, 2d Dept 2005], affd sub nom. 33 AD3d 911 [2d Dept 2006] ). Here, the termination notice alleges that Respondent permitted “unsafe and unsanitary” conditions based on the accumulation of specific items, to wit, “newspapers, clothing, bikes, furnishings, boxes, refuse, papers, garbage, and miscellaneous debris” that have obstructed passage through the apartment and the windows, attracts vermin, and constitutes a “fire hazard.” Affording all inferences in favor of Petitioner, this Court finds that the nuisance ground as alleged in the notice of termination is reasonable because it sufficiently enables Respondent to prepare a defense at trial—the facts of which are largely within respondent's possession (see e.g. Courtney House, LLC v. Goetz, 51 Misc 3d 146(A) [App Term, 1st Dept 2016] [termination notice's allegations of “an extremely cluttered and unhygienic condition,” harboring of “wild animals,” and a “moth infestation spread from tenant's apartment to other apartments” deemed sufficient]; see also 200 E. 27 LLC v. Gru, 23 Misc 3d 127(A) [App Term, 2d Dept 2009] ).

Lastly, that branch of Respondent's motion seeking leave to serve a late answer is granted absent written opposition. Accordingly, it is:

Ordered that Respondent's motion to dismiss is granted to the extent that the second termination ground for failure to provide access for inspection and repairs pursuant to RSC (9 NYCRR) § 2524.3 (e) is hereby dismissed; and it is further

Ordered that the motion is otherwise denied; and it is further

Ordered that the proposed answer annexed as Exhibit “G” to the moving papers shall be deemed the answer in this proceeding and that such answer shall be deemed served on Petitioner; and it is further

Ordered that Respondent shall file the answer within 10 days from the date of this order; and it is further

Ordered that the attorneys are directed to appear in Part J for trial on November 14, 2018 at 9:30 am.

FOOTNOTES

1.   Both the notice to cure and notice of termination include a nuisance claim based on identical allegations; however, it is not recited here as there is no serious dispute that for a notice to cure was not required.

2.   See Domen Holding Co. v. Aranovich, 1 NY3d 117, 125 (2003); Oxford Towers Co., LLC v. Leites, 41 AD3d 144, 145 (1st Dept 2007) (notice containing “obvious typographical error” not facially insufficient); see e.g. Marick Real Estate, LLC v. Ramirez, 11 Misc 3d 42, 44 (App Term, 2d Dept 2005) (dismissing as vague allegation that operation of family day care home violated “applicable codes”); 190 Riverside Dr. L.L.C. v. Nosei, 185 Misc 2d 696, 697 (App Term, 1st Dept 2000) (only “substantial and prejudicial misstatements” in predicate notice warrant “strict construction as a matter of equity”); First Ave. Properties v. McLaughlin, 53 Misc 3d 149(A) (App Term, 1st Dept 2016) (in nonprimary residence termination notice survives since tenant “did not allege that she was misled as to the nature of this proceeding or was prejudiced in responding to the landlord's petition”); 69 E.M. LLC v. Mejia, 49 Misc 3d 152(A) (App Term, 1st Dept 2015) (allegations that tenant engaged in “anti-social, disruptive, destructive, dangerous and/or illegal behavior,” caused other unspecified “substantial damage throughout the apartment” and unidentified “fixtures,” and indeterminately “caused a serious health, safety and fire hazard” to herself, other tenants and building employees deemed too generic and conclusory to meet the requirements of RSC 2524.2).

3.   See 31-67 Astoria Corp. v. Landaira, 54 Misc 3d 131(A) (App Term, 2d Dept 2017) (citing one-day gap between cure date and service of notice of termination where grounds were for nuisance and failure to give access); 340 Clifton Pl. LLC v. Legette, NYLJ 1534564053NY5780318 (Civ Ct, Kings County 2018) (one-day gap in nuisance claim based on harassment and drug use); 76 West 86th Street Corp. v. Junas, 55 Misc 3d 596 (Civ Ct, Kings County 2017) (two-day gap deemed insufficient on illegal sublet ground); CDC E 105th St Realty v. Mitchel, NYLJ 1202785511936 (Civ Ct, New York County 2017) (two-day gap for unsanitary and unsafe conditions ground); Second Housing Co. Inc v. Davis, NYLJ 1202772251405 (Civ Ct, Queens County 2016) (finding lack of good faith on curable nuisance ground where termination notice served one day after cure date).

4.   See e.g. Haruvi v. Rosen, 10 Misc 3d 137(A) (App Term, 1st Dept 2005) (owner's use proceeding dismissed where predicate notices were devoid of any specifics as to reasons why owner would rather live in the tenant's rent stabilized apartment than his current two story residence in Manhattan two blocks away); cf Hirsch v. Stewart, 63 AD3d 74, 77 (1st Dept 2009); London Terrace Gardens, L.P. v. Heller, 40 Misc 3d 135(A) (App Term, 1st Dept 2009) (conceding that asserting facts in termination notice may be less compelling in nonprimary residence claim than in owner's use a tenant, but nevertheless dismissing the notice for failure to assert a factual predicate in nonprimary termination notice).

5.   See Hughes, 226 AD2d at 18 (owner's use); 190 Riverside Dr. L.L.C. v. Nosei, 185 Misc 2d at 698 (App Term, 1st Dept 2000) (nonprimary residence); Sung Yoon Kim v. Hettinger, 58 Misc 3d 159(A) (App Term, 2d Dept 2018) (owner's use); Barrett v. Silva, 18 Misc 3d 126(A) (App Term, 2d Dept 2007).

6.   Indeed, the Landaira court noted the one-day period between the cure date and service of the termination notice, suggesting that the landlord's lack of good faith in claiming a failure to cure rendered the notice unreasonable under the circumstance.

Zhuo Wang, J.