London Terrace Gardens, L.P. v Heller

[*1] London Terrace Gardens, L.P. v Heller 2009 NY Slip Op 29431 Decided on October 23, 2009 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Miscellaneous Reports.

Decided on October 23, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, JJ
.

London Terrace Gardens, L.P., -Appellant, 570560/09

against

Kenneth Heller, Respondent-Tenant-Respondent.

Landlord appeals from an order of the Civil Court of the City of New York, New York County (Gerald Lebovits, J.), dated May 18, 2009, which granted tenant's motion to dismiss the petition in a holdover summary proceeding.

Per Curiam.

Order (Gerald Lebovits, J.), dated May 18, 2009, affirmed, with $10 costs.

The notice of termination underlying this nonprimary residence holdover proceeding broadly states that tenant has not "maintained an ongoing, substantial, physical nexus with the [rent controlled] premises for actual living purposes"; that tenant has "failed to spend more than 183 days out of the preceding year residing at the premises, as confirmed and substantiated" by unidentified building employees; and that "[n]o building personnel [have] seen [tenant] at the subject premises for [more than] one year." In such unparticularized form, the termination notice was too generic and conclusory to satisfy the requirements of New York City Rent and Eviction Regulations (9 NYCRR) section 2204.3 that the notice state the ground upon which the tenant's eviction is sought, as well as "the facts necessary to establish the existence of such ground." While an allegation that a tenant primarily resides at a specified alternate location is not the sine qua non of pleading sufficiency in every nonprimary residence case (see Price v Chelsmore Apts., NYLJ, March 8, 1996, at 25, col 2 [App Term, 1st Dept]), 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.).

To uphold the studiously vague termination notice here under review would, for all practical purposes, eviscerate the plain language of the governing notice regulation and undermine its salutary purpose to discourage baseless eviction claims founded upon speculation and surmise, rather than concrete facts. Granted, the need for facts in a nonprimary residence notice served upon a tenant who obviously "knows whether he or she is utilizing the apartment as his or her primary residence," may be less compelling than in the counterpart situation involving a notice seeking to terminate a tenancy on owner use grounds, where "only the owner knows what his or her true intentions are" (Hirsch v Stewart, 63 AD3d 74, 80-81 [2009]). This circumstance, however, should not serve to trump the express terms of the notice regulation, which require a recitation of the "necessary" facts in "[e]very ... notice to a tenant to vacate or [*2]surrender possession of a housing accomodation" (9 NYCRR 2204.3 [emphasis added]), without differentiating among the various types of grounds for terminating a rent controlled tenancy.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 23, 2009