208-210 EAST 7TH LLC, pet-lad-app v. EDITH MARTINEZ, res-ten-res -and- JOSE MIRANDA, res-und-res

15-192. 208-210 EAST 7TH LLC, pet-lad-app v. EDITH MARTINEZ, res-ten-res -and- JOSE MIRANDA, res-und-res — Order (Michelle D. Schreiber, J.), dated November 13, 2014, insofar as appealed from, reversed, with $10 costs, tenant's cross motion denied, and the petition reinstated.

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15-192. 208-210 EAST 7TH LLC, pet-lad-app v. EDITH MARTINEZ, res-ten-res -and- JOSE MIRANDA, res-und-res — Order (Michelle D. Schreiber, J.), dated November 13, 2014, insofar as appealed from, reversed, with $10 costs, tenant’s cross motion denied, and the petition reinstated.

The holdover proceeding, alleging that tenant breached a substantial obligation of the tenancy and committed a nuisance in violation of Rent Stabilization Code (9 NYCRR) §2524.3(b) by making certain illegal alterations in her apartment, is not ripe for summary dismissal. The evidentiary proof submitted by tenant failed to establish the absence of material issues of fact as to whether she timely effectuated a cure of the complained-of-alterations, described in the notice to cure as the construction of an “illegal loft in the bedroom” or, as described in an HPD violation report, a “wooden platform… creating two levels.” In this regard, the moving affidavit of tenant’s husband conspicuously failed to indicate the actual date he removed the offending condition or the date he informed landlord that the condition had been cured. Nor was any evidentiary proof submitted demonstrating that landlord was aware of tenant’s cure prior to the commencement of the underlying holdover proceeding (see Cambridge Dev., LLC v. Staysna, 68 AD3d 614 [2009]; Ariel Assoc. v. Brown, 271 AD2d 369 [2000], lv dismissed 95 NY2d 8444 [2000]). Without any such showing, tenant’s purported timely cure is not firmly established in the record.

208-210 EAST 7TH LLC, pet-lad-app v. EDITH MARTINEZ, res-ten-res -and- JOSE MIRANDA, res-und-res

15-192. 208-210 EAST 7TH LLC, pet-lad-app v. EDITH MARTINEZ, res-ten-res -and- JOSE MIRANDA, res-und-res — Order (Michelle D. Schreiber, J.), dated November 13, 2014, insofar as appealed from, reversed, with $10 costs, tenant's cross motion denied, and the petition reinstated.

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