75 Monroe St. LLC v Moy
Annotate this CaseDecided on June 29, 2006
Civil Court of the City of New York, New York County
75 Monroe Street LLC, Petitioner,
against
Peter Moy, WINNIE CHAN, NGAI CHAN, and CHING CHAN, Respondents.
55655/06
Barry S. Schwartz, New York City, for petitioner.
MFY Legal Services, Inc., New York City (Donna Chiu of counsel), for respondents.
Gerald Lebovits, J.
Petitioner brings this holdover proceeding against respondents for their allegedly breaching the parties' lease and moves for an order under CPLR 408 to conduct pretrial disclosure by way of document production and inspection of the premises. Respondents cross-move to dismiss the proceeding under CPLR 3211 (a) (2). The motion and cross-motion are consolidated for disposition.
Petitioner alleges that respondents violated the parties' lease agreement by illegally subletting their rent-stabilized studio apartment to ten supposedly unidentified adults without petitioner's consent. According to petitioner, the alleged sublet creates overcrowding and dangerous conditions. This case raises four issues. First, whether the cure and termination [*2]notices are sufficient. According to respondents, the proceeding should be dismissed because petitioner did not cite the specific lease provision allegedly violated in the predicate notices. Second, whether the predicate notices satisfy Rent Stabilization Code (RSC) [9 NYCRR] § 2524.2. Third, whether partial summary judgment should be granted on petitioner's nuisance claim of overcrowding. Fourth, if the proceeding is not dismissed, whether petitioner has shown ample need for disclosure.
On November 4, 2005, petitioner sent respondents a notice to cure alleging the following:
"(1) You are in violation of your lease and RPL 226 (b) in that you have sublet the apartment or assigned your lease to person's unknown to the landlord, without obtaining the landlord's consent,
"(2) There are at least 10 adults residing in the apartment, the names of which are unknown despite the landlord's attempt to ascertain their identities,
"(3) Upon information and belief you are no longer residing in the apartment,
"(4) There are at least 10 adults residing in the apartment, a studio apartment, resulting in overcrowding and dangerous conditions." (Notice to Cure, Nov. 4, 2006, at ¶¶ 1-4.)
Petitioner also sent respondents a notice to terminate their tenancy effective December 15, 2005. The notice states that "[t]he reason for the termination of your tenancy is the fact that you have violated and are still violating substantial obligation [sic] of your tenancy and have failed to cure such violations after written notice by the Landlord that such violations should cease." (Notice to Terminate, Nov. 28, 2006.) The contended violations in the termination notice are identical to those in the cure notice. (See id. at ¶¶ 1-4 .)
Respondents motion to dismiss under CPLR 3211 (a) (2) is denied. RSC [9 NYCRR] § 2524.2 (a) requires a landlord to give a tenant written notice of the intent to terminate the tenant's lease before bringing a holdover proceeding. Under § 2524.2 (b), every notice to a tenant must state the ground for eviction or surrender of possession, the facts necessary to establish the reason for eviction or surrender of possession, and the date when the tenant is required to surrender possession. To determine the adequacy of a predicate notice, the standard is one of "reasonableness in view of the attendant circumstances." (Hughes v Lenox Hill Hosp., 226 AD2d 4, 18 [1st Dept 1996].) The rule is that "[a] predicate notice in a holdover summary proceeding need not lay bare a landlord's trial proof and will be upheld in the face of a jurisdictional challenge where . . . the notice is as a whole sufficient adequately to advise . . . tenant and to permit it to frame a defense." (McGoldrick v DeCruz, 195 Misc 2d 414, 415 [App Term, 1st Dept 2003, per curiam].)
Petitioner's cure and termination notices allege the grounds for eviction. They allege that respondents have breached their lease by illegally subletting their apartment. Petitioner satisfies the RSC's requirement by stating facts to support its allegations. The notices read that 10 adults live in respondents' apartment while respondents no longer live there. Petitioner also complies [*3]with the RSC's requirements by stating the termination date of the tenancy. The cure and termination notices meet the Hughes and McGoldrick standards. (See Hughes, 226 AD2d at 18; McGoldrick, 195 Misc 2d at 415.)
Respondents argue the predicate notices do not state the specific lease provision violated. They cite Chinatown Apartments, Inc. v Lam (51 NY2d 786, 788 [1980, mem]) to support their argument that the lease provision violated must be included. The facts in Chinatown Apartments are distinguishable from this case. In Chinatown Apartments, the tenant built a "cube-like structure which stood in the center of one of his [tenant's] rooms." (Id. at 787.) The landlord in Chinatown Apartments argued that the tenant breached the lease by building a "partition," but the landlord did not cite the clause prohibiting the tenant to build a "cube-like structure." (Id.) The Chinatown Apartments court found the notice deficient because it failed to cite the specific lease prohibition the tenant violated when constructing the "cube" and thus that the notice did not communicate a lease violation because the tenant built a "cube" while the lease included the term "partition." (Id.)
By contrast, the predicate notices here communicate respondents' alleged violation. The lease provides that:
"[t]enant must not assign all or part of this [l]ease or sublet all or part of this [a]partment or permit any other person to use the [a]partment. If [t]enant does, [l]andlord has the right to cancel the lease . . . Tenant must get [l]andlord's written permission each time [t]enant wants to assign or sublet." (Notice of Cross-Motion, Ex. B, Apr. 23, 2001, at ¶ 12 .)
The lease prohibited respondents' alleged actions. No ambiguity arises over whether respondents, if they are illegally subletting the apartment, are breaching their lease. The lease provides that respondents are not permitted to sublet their apartment without petitioner's consent. In Chinatown Apartments, a question arose whether the tenant's "structure" violated the lease's prohibition against building a "partition." (51 NY2d at 787.) The uncertainty whether the tenant's "structure" breached his lease required the landlord to include the supposedly violated lease provision. (Id.) No such question arises here.
More on point is Three Mosholu Realty Co. v Ezoch, which found that the landlord's failure to include in a predicate notice the specific lease provision violated does not render a predicate notice invalid if the facts in the predicate notice "clearly describe the course of conduct which served as the basis of landlord's allegations" (NYLJ, June 30, 1992 at 21, col 3 [App Term, 1st Dept].) The absence of the specific lease provision does not, therefore, necessarily prevent tenants from defending themselves.
Partial summary judgment is granted on whether the alleged illegal sublet presents overcrowding and dangerous conditions. Petitioner has not included facts in its notices or proof of a violation to support this nuisance claim. (See 210 W. 94 LLC v Concepcion, 2003 NY Slip Op 50612 [U], *3, 2003 WL 1873768, at*1, 2003 NY Misc LEXIS 179, at *1 [App Term, 1st Dept, Mar. 3, 2003, per curiam].) [*4]
Petitioner's motion for disclosure is granted. The sufficiency of the notices, respondents' denial of the allegations, and respondents' supposed refusal to allow petitioner to enter the premises demonstrate petitioner's ample need for disclosure. Although respondents provided some information about themselves, petitioner is entitled to disclosure to determine whether there is an illegal sublet.
The proceeding is marked off calendar pending disclosure.
This opinion is the court's decision and order.
Dated: June 29, 2006
J.H.C.
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