Tribeca Equity Partners, L.P. v Jacobson

[*1] Tribeca Equity Partners, L.P. v Jacobson 2014 NY Slip Op 51652(U) Decided on November 21, 2014 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 21, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Hunter, Jr., JJ.
570629/14

Tribeca Equity Partners, L.P., Petitioner-Landlord-Appellant, -

against

Gene Jacobson, Respondent-Tenant-Respondent, -and- John Michael Pendley a/k/a JM Pendley, "John Doe" and/or "Jane Doe", Respondents-Undertenants.

Landlord appeals from an order of the Civil Court of the City of New York, New York County (Phyllis K. Saxe, J.), dated June 17, 2014, which granted tenant's preanswer motion to dismiss the petition in a holdover summary proceeding and denied landlord's cross motion for summary judgment on the petition.

Per Curiam.

Order (Phyllis K. Saxe, J.), dated June 17, 2014, affirmed, with $10 costs.

This summary holdover proceeding was properly dismissed on tenant's motion. Landlord's failure to serve a notice to cure as required by paragraph 14 of the governing lease agreement and section 2524.3(a) of the Rent Stabilization Code was fatal to its possessory cause of action based on allegations that the long-term tenant illegally sublet the apartment premises in October 2012 (see Hudson Assoc. v Benoit, 226 AD2d 196 [1996]) and failed to include the subtenant (Pendley) on the November 2012 household composition statement filed by tenant pursuant to the Federal Low Income Housing Tax Credit ["LIHTC"] program (see Macon St. Assoc., L.P. v Sealy, 32 Misc 3d 52 [2011]). To be distinguished is 501 W. 41st St. Assoc., LLC v Annunziata (41 Misc 3d 138[A], 2013 NY Slip Op 51922[U] [App Term, 1st Dept 2013]) where the cure notice requirement was dispensed with where tenant failed to disclose "tens of thousands of dollars" in assets in order to initially become eligible to rent the subsidized apartment premises, conduct found to be incapable of cure. By contrast, here, no claim or showing was made that the tenant initially obtained possession of the apartment by fraudulent means (see Wong v Gouverneur Gardens Hous. Corp., 308 AD2d 301, 305 [2003]), or that the subletting arrangement here complained of or the isolated lapse in disclosing Pendley's assets was incapable of cure (cf. Matter of Waterside Redev. Co., L.P. v Dept. of Hous. Preserv. & Dev., 270 AD2d [*2]87, 88 [2000]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

Decision Date: November 21, 2014