Williamsen v Bugay

[*1] Williamsen v Bugay 2008 NY Slip Op 52264(U) [21 Misc 3d 1128(A)] Decided on November 9, 2008 Civil Court Of The City Of New York, Kings County Heymann, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 9, 2008
Civil Court of the City of New York, Kings County

William Williamsen, & Florence Williamsen, Petitioner(s),

against

John Bugay, Respondent(s).



63652/08



The petitioners were represented by:

Lee M. Nigen, Esq.

Lee M. Nigen & Associates, PC

3006 Avenue M Suite 1D

Brooklyn, New York 11210

718 - 677- 4190

The respondent was represented by:

Brent Meltzer, Esq., Of Counsel

John C. Gray

South Brooklyn Legal Services, Inc.

105 Court Street

Brooklyn, New York 11201

718 - 237 -5500

George M. Heymann, J.

In this "nuisance" holdover proceeding, the respondent seeks dismissal of the petition pursuant to CPLR §3211 on the following grounds:

a) Failure to serve a predicate notice issued by the owner, as required by Rent Stabilization Code (RSC) §§2524.3(a) and 2524.2(a);

b) Failure to state in the Notice to Cure the lease provision violated by respondent;

c) Failure to serve a Notice to Cure that contains a provision giving respondent at least 10 days in which to cure any alleged violation as required by RSC §2524.3(a);

d) Failure to provide respondent with a 10 day opportunity to cure the alleged lease violations as required by RSC §2524.3(a); and

e) Failure to state the facts upon which this proceeding is based in the Notice of Termination as required by RSC §2524.2.

The "Ten-Day Notice To Cure", dated January 28, 2008, reads, in relevant parts: [*2]

PLEASE TAKE NOTICE that you are in violation of the terms of your lease in that you have intentionally created a nuisance by your conduct which includes but is not limited to loud noise, criminal activity in the apartment, as well as hosting the presence of a known person of ill repute known as Robert Korecki, for whom you have illegally sublet the premises.

PLEASE TAKE NOTICE THAT if you fail to desist from such conduct summary proceedings shall be commenced against you in a court of competent jurisdiction and demand will be made for the value of costs and attorney's fees incurred by the landlord.

It is signed at the bottom "Lee M. Nigen, Attorney for Landlord/Owner William & Florence Williamsen". This Notice was serve upon the respondent by conspicuous service on February 12, 2008 with copies mailed on February 13, 2008 by first class and certified mail. Thereafter, on February 18, 2008, a "Ten Day Notice Of Termination", also signed by counsel, was served upon the respondents. The first paragraph of the termination notice was identical to the opening paragraph of the Notice To Cure and then went on to state:

PLEASE TAKE NOTICE that YOU HAVE FAILED TO CURE THE [sic] EACH AND EVERY ONE OF THE AFOREMENTIONED CONDITIONS. Therefore, any occupancy agreement you have will terminate on March 8, 2008, which is not less than ten (10) days from the date of the service of the Notice to Cure. Therefore, you must vacate and surrender the possession of the premises to the Landlord/Owner forthwith. In the event that you fail to do so, the Landlord/Owner will commence summary proceedings to recover the possession of the premises.

This Notice was served by conspicuous service on February 26, 2008 at ll:40 A.M. and conformed copies were mailed the same day. The affidavit of the process server further notes:

"Also on FEBRUARY 26TH , 2008 at 8:11 PM,[FN1] I attempted to serve the respondent at the above address."

The Petition and Notice of Petition were served personally on the respondent and by substituted service on "John" and "Jane Doe" on March 31, 2008.

For the reasons enunciated below, the petition must be dismissed. Any one of the grounds alleged by the respondent, if proven, would be fatal to the prosecution of this proceeding. Here, however, the Court finds that every allegation raised has been proven and the cumulative effect cannot be overcome by the petitioner's contentions in response thereto.

A) According to RSC §§2524.3(a) and 2524.2(a), it is the owner who must give notice to the tenant when seeking to terminate a tenancy. As succinctly stated in Siegel v. Kentucky Fried Chicken of Long Island, Inc., 108AD2d 218: "a notice of termination signed by an agent or attorney who is not named in the lease as authorized to act for the landlord in such matters, and [*3]which is not authenticated or accompanied by proof of the latter's authority to bind the landlord in giving of such notice, is legally insufficient to terminate the tenancy".

Here, the respondent claims that he had no knowledge of who Mr. Nigen was prior to receiving the Notice to Cure, which was not accompanied by any letter of authorization by the owner/landlord. Nor has any proof been submitted that there was any designation of Mr. Nigen in the lease between the parties setting forth Mr. Nigen, as counsel for the owner/landlord, to act as his agent for the purpose of signing such notices.

In response to this allegation, petitioners'counsel relies on the holdings in 152 W. Realty, LLC v.N & G Luggages, Inc., 15 Misc 3d 1121(A), 839 NYS2d 434, 2007 NY SlipOp 50789(U) and Ohday Realty Corp. v. Lupone, 192 Misc 2d 317, 746 NYS2d 233. In both of these cases the courts did not dismiss the petitions where the termination notices were not signed by the owners personally since it was established that the agents who signed the notices had previous dealings with the tenants.

Here, the petitioners aver that because the respondent contacted their attorney on February 18, 2008, after receipt of the Notice to Cure, the "respondent had prior dealings [with] the undersigned before the Notice of Termination was served and it is therefore not defective." Petitioners further maintain that because all of the cases cited by the respondent pertained to Notices of Termination, "[i]n regards to the Notice to Cure it is possible that when the Rent Stabilization Code requires the owner to provide notice to cure the violation, the owner's attorney or agent is sufficient."

These arguments by the petitioner are without merit. Simply put, an e-mail and a handwritten letter by the respondent to petitioners' counsel, both dated February 18, 2008, subsequent to, and in response to, the service of the Notice to Cure, cannot by any stretch of the imagination be considered "prior dealings" between them establishing the necessary authorization for counsel's signature on the Notice of Termination. Petitioners'assertion that "it is possible" that the RSC provision [§2524.3(a)] requiring "written notice by the owner" to cure violations is sufficient if made by the owner's attorney or agent is without any legal foundation. Reading sections 2324.2 and 2324.3 of the RSC together leaves no room for the petitioners' misinterpretation. The statute clearly states "owner", without qualification, and it is not up to the petitioners' counsel to incorporate "the owner's attorney or agent" as additional individuals who can provide the requisite written notice to cure or terminate a tenancy.

B) The Notice to Cure, as outlined above, does not state which provision(s) of the respondent's lease is (are) being violated. 542 Holding Corp. v. Prince Fashions, Inc., 46 AD3d 309 (1st Dept., 2007)[" The purpose of a notice to cure is to specifically apprise the tenant of claimed defaults in its obligations under the lease and of the forfeiture and termination of the lease if the claimed default is not cured within a set period of time.' Filmtrucks Inc. v. Express terminal Industries & Terminal Corp., 127 AD2d 509, 510"]; Cohn v. White Oak Cooperative Housing Corp., 243Ad2d 440 (2nd Dept., 1997); Stanford Leasing Corp. v. Stewart, NYLJ, 9/22/99, p.32, col.2; Build Inc. v. Leonard, NYLJ, 12/11/89, p.28, col. 5 ["The notice upon which this proceeding rests fails to specify which clause, paragraph or part of the lease has been violated by the conduct specified. Such failure renders the notice ineffective, and the tenancy therefore continues, depriving the proceeding of any basis. The notice, unlike a pleading, cannot be amended nunc pro tunc after commencement of the proceeding."]. [*4]

Petitioners seek to avoid the issue of the Notice to Cure's ambiguity by arguing that such notice is not required for nuisance cases. "Because a Notice to Cure is not always required in a nuisance holdover proceeding .... in this case where a Notice to Cure was nevertheless provided, the fact that the notice details the nuisance complained of, should be sufficient." [P Affirmation in Opposition, ¶ 12] Petitioners' counsel cites the case of Lemle v. Gewirtz, NYLJ, 9/4/96, p.25, col.2 (AT1) in support of his reasoning. While the court in that case held that no notice to cure was required where the holdover was grounded in nuisance, it did state that "[t]he proceeding was properly commenced upon a notice of termination alleging in detail the tenant's conduct, which is said to have included consistently' banging on and loitering' on front of the entrance doors of other apartments, continuously' running water in his apartment at all hours of the day and night' and menacing' other tenants in the common stairway." (Emphasis added) Lemle is distinguishable from the case at bar because in that case there was no allegation of any lease violations as there are here, thus no notice to cure was necessary. Counsel's position, that since a notice to cure was not needed in the first place the fact that petitioners took the extra step to serve such a notice should not jeopardize this proceeding regardless of its deficiencies. The Court cannot acquiesce in that logic. If the petitioners seek to adhere to the position that the specific lease provisions were superfluous because this case is based on nuisance, then it must still fail for lack of specificity in providing the respondent sufficient information such as dates, times, locations, etc., in order to prepare a defense. Unlike Lemle, the notice to cure here does not "allege in detail the tenant's conduct" and does not state that said conduct is "consistent" and "continuous". Domen Holding Co. v. Aranovich, 1 NY3d 117 ["Nuisance imports a continuous invasion of rights a pattern of continuity or recurrence of objectionable conduct'."]; University Towers Associates v. Gibson, 18 Misc 3d 349, 846 NYS2d 872.

As this Court stated in Thelen v. Torres, NYLJ, 10/21/98, p.29, col.5:

The petitioner cannot have it both ways. He made an election as to which theory he wanted to pursue in seeking a possessory judgment and drafted his notices and pleadings accordingly. The inartfully drafted predicate notices in this case cannot serve as a basis for providing proper notice to the respondent or for giving this Court jurisdiction of this matter.

In Rockaway One Company, LLC v. Califf, 194 Misc 2d 191, 751 NYS2d 670, the Appellate Term, Second Department held that a petitioner could proceed on alternative grounds where the grounds exist for the maintenance of both a nuisance holdover and a holdover based on a breach of a substantial obligation of the lease "without the procedural prerequisites of the one becoming engrafted on the other. If nuisance is established, service of the notice to cure required for the alternative ground of violation of the lease does not require that the tenant be afforded an opportunity to cure the nuisance if the proof shows that such opportunity is otherwise unwarranted." Id. at 194

Petitioners' conclusory statement that "it is obvious which provisions of the lease are at issue", [P Affirmation in Opposition, ¶ 13] does not meet the standards for a proper notice to cure pursuant to either statute or decisional law.

C) The Notice to Cure failed to inform the respondent as to a date certain he must cure the alleged violations. RSC §2524.3(a) provides that the owner serve a written notice on the tenant that his or her tenancy will be terminated for violating substantial obligations of the lease [*5]and that the tenant "has failed to cure such violation after written notice by the owner that the violations cease within 10 days". Petitioners assert that the denomination of the notice served as a "Ten-Day Notice To Cure" is sufficient to alert the tenant that he must cure the alleged violations within a ten day period. The Court disagrees. Without specifically addressing the 10 day time frame within the substantive paragraphs of said notice, the notice is ambiguous and can lead to confusion by the recipient in knowing when to cure in order to avoid potential forfeiture of his tenancy. Is it ten days from the date the notice is written? Is it ten days from the day it is mailed if not served personally? Is it ten days from the day it is received if not served personally? "A notice to cure which is equivocal, internally inconsistent, or ambiguous about the date by which the cure must be accomplished is not legally sufficient." 40 East 68th Street Co. v. Habbas, 17 Misc 3d 1101(A), 851 NYS2d 57, 2007 NY SlipOp 51789(U). As set forth below, this uncertainty became a prime concern of the Court of Appeals when it addressed the issue of when the cure period begins in ATM One, LLC v. Landaverde, 2 NY3d 472, 779 NYS2d 808.

D) Petitioners did not provide the respondent with a full ten (10) day period in which to cure the alleged violations. In order to insure that sufficient time is provided to a tenant who is served with a notice to cure, the Court of Appeals in Landaverde held that "owners who elect to serve by mail must compute the date certain by adding five days to the 10-day minimum cure period".[FN2] Id.at 477; see, South Park Estates Co. V. Hilverdink, 13 Misc 3d 62, 823 NYS2d 816.

In the instant proceeding, the Notice to Cure was served conspicuously on February 12, 2008 with mailing the next day, February 13, 2008. As noted, the Notice did not contain a specific cure date so it becomes necessary to calculate such a date. Ten days from the 13th would be February 23, 2008. Adding an additional 5 days as required by Landaverde makes February 28, 2008 the date by which the alleged violations must be cured before the petitioners can seek to terminate the tenancy for non-compliance with the Notice. Thus, service of any termination [*6]notice prior to February 29, 2008 would deprive the tenant the full 10 day cure period that he is entitled to. Petitioners' contention, that because the Notice was affixed to the tenant's door he is only entitled to 10 days to cure and that the additional mailing (as required for any service other than in person) "does not give the respondent more time"[P Affirmation in Opposition, ¶ 12], is a complete misunderstanding of, and disregard to, the Landaverde edict.

Since the Notice of Termination was served upon the respondent on February 26, 2008 it was three days premature. Thus, the respondent was not given the full 10 day cure period he is entitled.

E) The Notice of Termination fails to state the facts necessary to inform the tenant of the alleged violations of the lease or the existence of a nuisance in order to establish grounds to commence this summary proceeding. A termination notice "must be clear, unambiguous and unequivocal in order to serve ad the catalyst which terminates a leasehold." SAAB Enterprises, Inc. v. Bell, 198 AD2d 342, 603 NYS2d 879 (2nd Dept., 1993).The Notice of Termination here merely incorporates the language of the Notice to Cure without any additional information as to the specifics of the respondent's "nuisance" or "lease violations". As the Notice to Cure is insufficient as a predicate notice to sustain this proceeding, the Notice of Termination, which contains nothing more than a repetition of the Notice to Cure and a statement that the respondent failed to cure "the aforementioned conditions", is insufficient as well to maintain this action.Accordingly, the respondent's motion to dismiss the petition is granted and the petition is dismissed. With respect to respondent's request for attorney's fees, that branch of the motion is denied without prejudice to renew upon proper papers.

This constitutes the Decision and Order of the Court.

Dated: November 9, 2008__________________________

George M. Heymann, JHC Footnotes

Footnote 1: Neither party addressed the time of the attempted service which would have had to occur at 8:11 AM on February 26th or 8:11 PM on February 25th or a date prior thereto. Although probably just a typographical error, the petitioner did not seek to amend the affidavit which, if not corrected and contested by the respondent, would render the service of the Notice of Termination defective.

Footnote 2: As this Court stated in its decision 135 PPW Owners LLC v. Schwartz, 7 Misc 3d 1016, 801 NYS2d 238 (2005), 2005 NY SlipOp50629(U), "although the Court [of Appeals] refers to Civil Practice Law and Rules ("CPLR") 2103[b][2] which requires the addition of five (5) days to prescribed periods for service by mail, the Court clearly stated that such provision applied only to pending actions and declined to extend its applicability to the commencement of summary proceedings." This Court went on to observe that "[i]ronically, in its attempt to find a fair and practical solution to this regulatory ambiguity' (Landaverde, supra at 478) the Court of Appeals has actually opened the floodgates to numerous conflicting opinions by Judges of the Housing Court regarding the applicability of Landeverde to various types of notices other than a notice to cure." The following decisions were then cited in favor of, and opposed to, the applicability of Landaverde to the service of "Golub" Notices: YES: Lynch v. Dirks and Wolf, NYLJ, 1/5/05, p.19, col.3; Shoshany v. Goldstein, NYLJ, 2/9/05, p.18, col.3; Croman v. Thompson, NYLJ, 2/23/05, p.21, col.3; NO: KSLM Columbus Apartments v. Bonnemere, NYLJ, 1/5/05, p.19, col. 1; Gnann v. Crawford, Civ. Ct., NY Co., 12/1/04, Index Nos. L & T 73194/04; 73195/04; 73196/04.

In Zunce v. Rodriguez, ___ Misc 3d ___, ____ NYS2d ____, NYLJ, 11/5/08, p.35, col.1, this Court joined with those cases cited above that did not apply the 5 day rule to "Golub" notices.