B & K 236 LLC. v DiPremzio

[*1] B & K 236 LLC. v DiPremzio 2018 NY Slip Op 51952(U) Decided on December 13, 2018 Civil Court Of The City Of New York, Bronx County Black, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 13, 2018
Civil Court of the City of New York, Bronx County

B & K 236 LLC., Petitioner (Landlord),

against

Robert DiPremzio, "JOHN DOE", "JANE DOE", Respondents (Tenants).



L & T 042312/17



Attorney for Petitioner: James G. Dibbini, Esq. for James G. Dibbini & Associates, P.C.

570 Yonkers Avenue, Yonkers, New York 10704

(914) 965-1011

Attorney for Respondent: Wagner A. Lubin, Esq. for Daniels Norelli Cecere & Tavel, P.C.

272 Duffy Avenue

Hicksville, New York 11801

(718) 457-6000
Bernadette G. Black, J.

Recitation, as required by CPLR § 2219(a), of the papers considered in the review of respondent's motion for dismissal.

Papers/Numbered

Notice of Motion, Affirmation and Exhibits Annexed 1

Petitioner's Affirmation in Opposition 2

Upon the foregoing cited papers, the Decision and Order upon this Motion is as follows:

This proceeding comes before the court upon respondent Robert DiPremzio's motion for dismissal pursuant to Civil Practice Law and Rules (CPLR) §3211(a)(2), because the court lacks subject matter jurisdiction, and pursuant to CPLR § 3211(a)(7) based upon petitioner's failure to state a cause of action. For the reasons stated below, respondent's motion is granted.

Petitioner B & K 236 LLC commenced this summary holdover proceeding to recover possession of the rent stabilized premises, 67 East 236th Street, Apartment 6, Bronx, New York, [*2]from respondents Robert DiPremzio, the tenant of record, and unknown occupants, "John Doe" and "Jane Doe". Petitioner alleges that respondents have violated substantial obligations of the tenancy and of the Occupancy Agreement, created a nuisance and engaged in a course of conduct that interfered with health, safety, comfort and/or quiet enjoyment of the other occupants of the building.

RELEVANT BACKGROUND

Petitioner commenced the proceeding by service of notice of petition and petition dated July 24, 2017, predicated upon a Ten-Day Notice, seeking possession of the premises. The proceeding was first calendared for August 9, 2017. Respondent appeared by an attorney and the case was subsequently adjourned by stipulation as the parties engaged in motion practice and settlement discussions. The parties were unable to reach agreement and this motion was submitted for decision.

It is undisputed that the "Ten (10) Day Notice to Cure and Notice to Tenant of Termination of Tenancy and Intention to Recover Possession" was the only notice served prior to commencement of this proceeding. The notice states, in relevant part:

"PLEASE TAKE NOTICE that you as Respondent are violating substantial obligations of your tenancy, creating a nuisance and engaging in a course of conduct substantially interfering with the health, safety, comfort and/or quiet enjoyment of other Respondents and occupants in the building. Said conduct includes but is not limited to:1. Respondent has failed to provide access for Inspection. This is in violation of your Occupancy Agreement.2. There is smoking and obstructing hallways. Said conduct is in violation of your Occupancy Agreement and interferes with the health and safety and wellbeing of other Respondents and occupants in the building.3. Respondent has a dog in the apartment. Said dog is a nuisance to other Respondents and occupants in the building and is in violation of your Occupancy Agreement.4. Respondent has unauthorized occupants in the apartment. Unauthorized occupants are overcrowding the apartment. Said overcrowding is a violation of your Occupancy Agreement and interferes with the health, safety, comfort and/or quiet enjoyment of other tenants and occupants in the building.5. Respondent is illegally accessing the roof, said illegal access of the roof is in violation of your Occupancy Agreement and the law.TAKE NOTICE that you are hereby requested to cure said breach on or before June 5, 2017, that being more than (10) days after the service of this Notice to Cure upon you, and that upon your failure to cure the Landlord (B & K 236 LLC) hereby elects to terminate your tenancy in accordance with the applicable provisions of law.TAKE NOTICE that in the event of failure to cure by June 5, 2017, unless you vacate and move you property from said premises on or before June 30, 2017, the day on which your term will expire, the Landlord (B & K 236 LLC) will commence appropriate proceedings to recover possession of said premises and remove you from said premises for holding over.

DISCUSSION

Respondent claims that the court lacks subject matter jurisdiction to hear this proceeding because the single predicate notice served on respondent is defective in that it is ambiguous. The [*3]tenant asserts that the notice simultaneously provides respondent with the opportunity to cure the violations alleged, and preserve the tenancy, and at the same time purports to terminate respondent's tenancy. Respondent further argues that the allegations set forth in the Notice to Cure do not provide sufficient detail to inform respondent of the alleged conduct which violates the lease, so that respondent could in fact cure the breach, and that petitioner failed to serve a proper termination notice. In addition, respondent contends that the proceeding should be dismissed pursuant to CPLR § 3211(a)(7) because the petition does not state a cause of action.

Although the court notes that a defective predicate notice does not deprive the court of subject matter jurisdiction, failure to comply with predicate notice requirements prove fatal to petitioner's case. "Civil Court is vested with subject matter jurisdiction over housing matters by statute (NY City Civ. Ct. Act § 110). The failure of a petitioner to comply with a statutory notice requirement, where applicable, represents merely the failure to comply with a condition precedent to suit and cannot properly be said to affect the court's jurisdiction." 170 West 85th Street Tenants Ass'n v. Cruz, 173 AD2d 338, 339 (1st Dept. 1991).

Where a landlord seeks surrender or vacatur of a rent stabilized housing accommodation, § 2524.2(b) of the Rent Stabilization Code (RSC) requires written notice to the tenant, stating the grounds under the Code, the facts necessary to support such grounds, and the date when the tenant is required to surrender possession of the premises. Domen Holding Co. v. Aranovich, 1 NY3d 117 (2003); see also Hirsch v. Stewart, 63 AD3d 74 (1st Dept. 2009); Dowarp Realty Co. v. Acevedo, NYLJ, Apr. 3, 1990, at 26, col. 2 (App. Term, 1st Dept.). Pursuant to RSC §2524.3(a), where the landlord seeks possession based upon wrongful acts of the tenant and claims breach of a substantial obligation of the tenancy, the landlord is required to provide written notice to the tenant that the violation must cease within ten days; otherwise the landlord may commence a proceeding to recover possession of the unit. Hudson Associates v. Benoit, 226 AD2d 196 (1st Dept. 1996); Graham Court Owners Corp. v. Kyle Taylor, 49 Misc 3d 7 (App. Term 1st Dept. 2015). The alleged breach must be serious and substantial, not minor. The language of the notice must be specific and unambiguous and advise the tenant of the precise condition or conduct complained of and how it violates the tenancy. Chinatown Apartments, Inc. v. Chu Cho Lam, 51 NY2d 786 (1980); 235 W Units LLC v. Maria Arias Zeballos, 127 AD3d 489 (1st Dept. 2015); Greenfield v. Etts Enterprises, Inc., 177 AD2d 365 (1st Dept. 1991); IG Second Generation Partners L.P. v. 166 Enterprises Corp., 2003 NY Slip Op 51218(U) (App. Term 1st Dept. 2003). Broad, conclusory or unparticularized allegations will not properly provide information necessary to enable the tenant to mount a defense to the proceeding or possibly avoid the litigation altogether. 69 E.M. LLC v. Mejia, 49 Misc 3d 152(A) (App. Term 1st Dept. 2015). The parties' lease may require similar notices.

The Notice alleges five grounds for eviction: Respondent failed to provide access for inspection; there is smoking and obstructing in the hallways; respondent has a dog in the apartment that is a nuisance to other respondents and occupants in the building; respondent has unauthorized occupants in the apartment, causing overcrowding; and, respondent is illegally accessing the roof. None of the stated grounds is supported by a factual allegation. Petitioner does not state why or when it sought access to inspect respondent's apartment; who was smoking in and obstructing the hallways, and when; the specific nuisance caused by the dog alleged to be in respondent's apartment, if there is a dog; any description of the unauthorized occupants; when respondent illegally accessed the roof and the substantial obligation breached by respondent's presence there. Further, each breach allegedly violates respondent's "Occupancy Agreement". [*4]However, petitioner does not provide any information about which sections of the agreement respondent violated. Chinatown Apartments, Inc. v. Chu Cho Lam, supra, at 788, "The deficiency in the notice arises from its failure to cite any specific prohibition in the lease which had been violated ." Id. The notice served here does not inform respondent of the conduct which violates his lease and is simply too vague and conclusory to constitute a proper predicate for this eviction proceeding.

The purpose of the notice to cure is to give the tenant an opportunity to avoid termination of the tenancy by eliminating the cause of the breach of the rental agreement alleged to be grounds for termination. Upon expiration of the cure period, the landlord must verify whether the tenant in fact cured the alleged breach, and if the tenant complied with the notice, no termination of tenancy may take place. Where the landlord's inquiry leads it to believe that the breach was not cured, the landlord may go forward with termination of the tenancy. A termination notice issued before the expiration of the cure period is premature and fatally defective. 496 Broadway Realty v. Kyung Sik Kim, 18 Misc 3d 1119(A) (Civ. Ct. NY Co. 2008).

A notice terminating an existing tenancy is an essential prerequisite for commencing a holdover proceeding where a landlord-tenant relationship exists. RSC § 2524.2. Petitioner's argument that the notice to cure and notice of termination can be combined into one notice is unavailing. Petitioner does correctly assert that a notice to cure may apprise the tenant that failure to cure may result in termination of the tenancy. However, the notice to cure itself cannot function as a substitute for a notice of termination, and a termination notice may not predate the end of the cure period. RSC § 2524.3(a); see also ATM One, LLC v. Landaverde, 2 NY3d 472 (2004); 496 Broadway Realty v. Kyung Sik Kim, supra, at 1119(A). As noted, in the instant case, only one notice was served by petitioner prior to commencement of this proceeding. The notice first offered respondent an opportunity to cure the alleged breach, but then proceeded to terminate respondent's tenancy in the same sentence. The language of the notice is unclear and ambiguous. Under these circumstances, the court must dismiss the petition. The court need not address respondent's alternative ground for dismissal. This constitutes the decision and order of the court.

Dated: December 13, 2018

Bronx, New York

________________________

Bernadette G. Black, J.H.C.