200 W. 58th St. LLC v Little Egypt Corp.

[*1] 200 W. 58th St. LLC v Little Egypt Corp. 2005 NY Slip Op 50640(U) Decided on February 10, 2005 Civil Court Of The City Of New York, New York County Billings, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 10, 2005
Civil Court of the City of New York, New York County

200 West 58th Street LLC, Petitioner

against

Little Egypt Corp., Respondent



L&T88840/04



For Petitioner

Judith M. Brener Esq.

By: Blair Hofherr Esq.

640 5th Avenue, New York, NY 10019

For Respondent

Edward M. Shapiro Esq.

225 Broadway, New York, NY 10007

Lucy Billings, J.

This commercial holdover proceeding requires the court to determine whether an insufficiently alleged lease default in a notice to cure invalidates the entire notice, even though it sufficiently alleges another lease default, and even where the two alleged defaults are not contradictory. For the reasons discussed below, the court concludes that the overriding purposes of a notice to cure require its invalidation in these circumstances and grants respondent tenant's motion to dismiss the petition on the ground that the content of the notice to cure is deficient. C.P.L.R. § 3211(a)(5) and (7).

I.THE CONTENT OF THE NOTICE TO CURE

The purpose of a notice to cure is to "apprise the tenant of claimed defaults in its obligations under the lease and of the forfeiture and termination of the lease if those defaults not cured within a set period." Filmtrucks, Inc. v. Express Indus. & Term. Corp., 127 AD2d 509, 510 (1st Dep't 1987). See One Main v. Le K Rest. Corp., 1 AD3d 365, 366 (2d Dep't 2003); Oswego Props. v. Campfield, 182 AD2d 1058, 1060 (3d Dep't 1992). The requirements for a sufficient notice to cure vary with the facts of a case and applicable statutory grounds for eviction. Hughes v. Lenox Hill Hosp., 226 AD2d 4, 17-18 (1st Dep't 1996); D.K. Property v. Mekong Rest. Corp., 187 Misc 2d 610, 611 (App. Term 1st Dep't 2001); 190 Riverside Drive LLC v. Nosei, 185 Misc 2d 696, 697 (App. Term 1st Dep't 2000). The notice to cure must inform the tenant unequivocally and unambiguously how it has violated the lease and the conduct required to prevent eviction. Chinatown Apts. v. Chu Cho Lam, 51 NY2d 786, 788 (1980); Greenfield v. Etts Enters., 177 AD2d 365 (1st Dep't 1991); Garland v. Titan W. Assocs., 147 AD2d 304, 310-11 (1st Dep't 1989); Filmtrucks, Inc. v. Express Indus. & Term Corp., 127 AD2d at 510.

Petitioner's notice to cure cites three lease violations as grounds for terminating [*2]respondent's tenancy. The notice first charges respondent with "selling merchandise in direct competition" with co-tenants by "selling the same merchandise as other tenants in the building at a substantially lower price." Aff. of Adel Abdou Abouelnaga, Ex. B. This notice fails to identify the co-tenants or the merchandise respondent sold that competed with those tenants. Thus respondent knows neither what the competing merchandise is, nor whether to cease selling the offending merchandise or sell it at a raised price to avoid eviction. These omitted but necessary facts are key to determining the reasonableness of the notice under the circumstances. Hughes v. Lenox Hill Hosp., 226 AD2d at 18.

The third alleged violation claims respondent has interfered with co-tenants' quiet enjoyment of their premises "by blocking access to other stores and by utilizing the space in front of the barbershop." While referring to the barbershop, the notice does not identify any of the other multiple "stores" allegedly blocked to which the notice refers in a separate phrase. Thus the notice to cure again fails to notify respondent how to avoid termination of the lease. This third allegation in the notice is further defective because it does not state how the conduct complained of violates the lease. Chinatown Apts. v. Chu Cho Lam, 51 NY2d at 788. While the lease refers to a covenant of quiet enjoyment, it relates only to petitioner's covenant to the tenants and does not impose that obligation between tenants.

In opposition to respondent's motion, petitioner claims an additional lease violation: that respondent has sold counterfeit merchandise in violation of federal and state statutes. Since the notice to cure nowhere includes this claim, it does not bolster petitioner's position regarding the sufficiency of the notice. Id. at 787. The first and third alleged defaults in the notice to cure are insufficient and may not now be amended or supplemented to remedy their defects. Id.; J.D. Realty Assocs. v. Jorrin, 166 Misc 2d 175, 179 (Civ. Ct. NY Co. 1995), aff'd, 169 Misc 2d 292 (App. Term 1st Dep't 1996); Kit Ming Corp. v. Lau Tsang, N.Y.L.J., Mar. 28, 2001, at 22 (Civ. Ct. NY Co.), aff'd, 2001 NY Slip Op 40305, 2001 WL 1535465 (App. Term 1st Dep't 2001); Second & E. 82 Realty LLC v. 82nd St. Gily Corp., 192 Misc 2d 55, 56 (Civ. Ct. NY Co. 2001).

The second alleged violation charges respondent with hanging merchandise from awnings and selling merchandise in front of the leased premises in violation of a lease proscription against using the sidewalk for retail purposes. Respondent claims that hanging merchandise from an awning and placing merchandise on a table in front of respondent's store does not violate the lease and that respondent removed the table upon receiving the notice to cure. While respondent may successfully defend against this alleged violation on these bases, the alleged violation is facially sufficient because it identifies the lease provision violated and notifies respondent regarding the method of cure and the consequences of failing to cure. 49 W. 12 Tenants Corp. v. Seidenberg, 6 AD3d 243, 244 (1st Dep't 2004); One Main v. Le K Rest. Corp., 1 AD3d at 366.

II. THE CONSEQUENCES OF A PARTIALLY DEFICIENT NOTICE TO CURE

The issue of first impression is whether this sufficiently alleged ground for termination saves the notice to cure and permits petitioner to proceed on this ground while disregarding the other deficient grounds. Where an otherwise facially sufficient notice of cure contains contradictory allegations and mutually exclusive cures, the notice to cure as a whole fails to satisfy the requirement that a predicate notice be specific and unequivocal. Metropolitan Life Insurance Company v. Harris, N.Y.L.J., Sept. 28, 1994, at 21 (Civ. Ct. NY Co.); Podsialdo v. Pacheco, N.Y.L.J., Mar. 26, 1997, at 25 (Civ. Ct. Bronx Co.). Here, to the extent the alleged defaults and cures are ascertainable, they are neither contradictory nor mutually exclusive.

The one sufficiently alleged lease violation, in the face of two insufficiently alleged violations in the notice to cure, however, produces a similar infirmity. The purpose of a notice to cure is to inform the tenant what it must do to avoid termination of the lease and, if the tenant maintains it has cured or does not need to cure and is not violating the lease, to defend against a holdover proceeding. The purpose is not to mislead, confuse, or hinder the tenant in either regard. 190 Riverside Drive LLC v. Nosei, 185 Misc 2d at 697. The notice to cure here, by its very inclusion of unspecific and equivocal grounds for termination, in one instance without reference to any lease violation, and equally ill-defined methods of curing such "violations," fails [*3]in the notice's fundamental purpose.

As a result of the landlord's "scattershot stratagem," Metropolitan Life Insurance Company v. Harris, N.Y.L.J., Sept. 28, 1994, at 21, the tenant is misled to believe it must address all those grounds for termination, not just the sufficient ground. To avoid the lease's termination here, respondent still must attempt to cure and prepare to defend against (1) selling unidentified merchandise in competition with unidentified co-tenants, also without knowing whether the cure is to cease sales or raise prices, and (2) blocking access to unidentified stores, in this instance without any identified lease violation to cure. Although those steps respondent needs to take are ill-defined, they differ from what respondent must do to cease using the sidewalk for retail purposes by hanging merchandise from an awning or displaying merchandise on a table and to cure or defend against a specified lease provision proscribing such use.

The partially deficient notice affords respondent an opportunity, at best, for only a partial cure. The deficiency in this notice is thus no different in its effect than a notice to cure charging contradictory or mutually exclusive lease violations. As a result, the partial validation of a notice to cure containing any substantive deficiency finds no support anywhere in the law. To provide that support would give landlords license to issue notices containing one sufficient charge and cure among a myriad of unfathomable charges and cures, in the hope that one might stand up, and meanwhile placing tenants in the unnecessarily precarious and untenable position of simply not knowing what to do to maintain their tenancy. By the time the tenant receives a determination of which grounds for termination are valid and must be addressed, the time for curing and preparing a defense in that regard has passed.

The landlord's recourse, on the other hand, is not onerous. The requirements for an adequate notice to cure are basic and not difficult to meet in the first instance. If a notice is partially deficient, however, and hence invalidated in full, the landlord is free is to serve another, adequate notice incorporating the previously adequate charges and remedying the previously inadequate charges.

III.CONCLUSION

The right to terminate a tenancy is conditioned on a fully valid predicate notice. Confusing notices that cite inadequate grounds for termination, whether contradictory or lacking in specificity, may not provide the predicate for a summary holdover proceeding. By serving a defective notice, petitioner has failed to satisfy a condition precedent and fails to state a prima facie claim. Chinatown Apts. v. Chu Cho Lam, 51 NY2d at 788; 433 W. Assocs. v. Murdock, 276 AD2d 360, 361 (1st Dep't 2000); 170 W. 85th St. Tenants Assn. v. Cruz, 173 AD2d 338, 339 (1st Dep't 1991); Kit Ming Corp. v. Lau Tsang, N.Y.L.J., Mar. 28, 2001, at 22, aff'd, 2001 NY Slip Op 40305. As pointed out above, because a predicate notice is a condition precedent to a summary eviction proceeding, defects in the notice may not be remedied by amendment or supplementation after commencement of the proceeding. Chinatown Apts. v. Chu Cho Lam, 51 NY2d at 788; J.D. Realty Assocs. v. Jorrin, 166 Misc 2d at 179, aff'd, 169 Misc 2d 292; Kit Ming Corp. v. Lau Tsang, N.Y.L.J., Mar. 28, 2001, at 22, aff'd, 2001 NY Slip Op 40305; Second & E. 82 Realty LLC v. 82nd St. Gily Corp., 192 Misc 2d at 56.

Given the defects in petitioner's notice to cure, the court grants respondent's motion and dismisses the petition. C.P.L.R. § 3211(a)(5) and (7); 49 W. 12 Tenants Corp. v. Seidenberg, 6 AD3d at 244. In light of this disposition, the court need not determine whether petitioner's retention of a check accepted August 12 and credited August 18, 2004, to respondent's outstanding rent for July 2004, all before the termination date August 20, 2004, vitiated the notice of termination. This decision constitutes the court's order and judgment of dismissal.

DATED: February 10, 2005

______________________________

LUCY BILLINGS, J.C.C.