Recitation, as required by CPLR 2219(a), of the papers considered in review of: Respondent’s motion for summary judgmentPapers NumberedMotion for summary judgment 1Affirmation in opposition 2Respondent’s affirmation in reply 3DECISION AND ORDER This summary holdover proceeding alleges a breach of a substantial obligation of the respondent’s tenancy based on claims of illegal subletting and failing to recertify. Both parties are represented by counsel. Respondent moves pursuant to CPLR §3212 for dismissal asserting: (1) petitioner failed to state a cause of action due to the lack of specificity in the predicate notices; (2) “petitioner’s failure to cite any instances in the notice or termination of [r]espondent’s failure to cure the conduct alleged in the notice to cure”; (3) that respondent had cured the alleged violation of the lease. Petitioner opposes the motion asserting that the predicate notices meet the requirements of the Rent Stabilization Code and applicable case law and that respondent had failed to cure both the alleged illegal sublet and to properly complete the income tax credit recertification.Summary judgment pursuant to CPLR 3212 is only granted when no genuine issue of fact exists and the moving party is entitled to judgment as a matter of law. The facts, through affidavits and other proofs, are evaluated in the light most favorable to the non-moving party. CPLR §3212[b]. The standard of review was clearly laid out by the Court of Appeals in Winegrad v. NY Univ. Med. Ctr., 64 NY2d 851, 853 (1985) as follows:The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issue of fact from the case (see, Zuckerman v. City of New York, 49 NY2d 557,562; Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Matter of Redemption Church of Christ v. Williams, 84 AD2d 648, 649; Greenberg v. Manlon Realty, 43 AD2d 968, 969).LACK OF SPECIFICITY IN THE PREDICATE NOTICESWith regard to examining the specificity of a predicate notice, the standard is not that a predicate notice must be as specific as possible but, rather, the appropriate standard for the assessment of a notice is one of reasonableness in view of all the attendant circumstances. Hughes v. Lenox Hill Hospital, 226 AD2d 4, 17 (1st Dept 1996), lv denied 90 NY2d 829; Avon Band Co v. Aguarian Foundation, 260 AD2d 207 (1st Dept 1999), appeal dismissed 93 NY2d 998. The stricture that a predicate notice must plead sufficient facts in order to allow a tenant to prepare a defense (see, Giannini v. Stuart, 6 AD2d 418 [App Term, 1st Dept 1968]), is not the same as requiring that every petition must be dismissed whenever it is possible that a landlord could have provided a more precise and specific allegation in the predicate notice. The notice must be as specific as reasonably necessary in order to give the tenant reasonable notice of the landlord’s claim and an opportunity to prepare a defense.Unlike the notice found deficient in Berkeley Assoc. Co. v. Camlakides, 173 AD2d 193 (1st Dept 1991) and other cases cited by respondent, the predicate notices in this proceeding do not merely recite the grounds for the landlord’s proceeding without stating specific factual allegations underlying the grounds for eviction. In those cases the predicate notices contained far fewer facts, if any. The court finds that the predicate notice to cure in this proceeding contains sufficient factual allegations to give the tenant reasonable notice of the landlord’s claim and an opportunity to prepare a defense. The notice fairly and reasonably apprises respondent of the conduct alleged by petitioner which underlies the commencement of this holdover proceeding. While it could possibly have been more specific, the court does not believe that petitioner was required to plead those specifics in the predicate notice to cure upon penalty of dismissal.1FAILURE TO CITE ANY INSTANCES IN THE NOTICE OF TERMINATION OF RESPONDENT’S FAILURE TO CURE THE CONDUCT ALLEGED IN THE NOTICE TO CUREThe predicate notice of termination in this proceeding, on the other hand, merely incorporates by reference the alleged violations contained in the notice to cure and simply alleges that respondent “failed to cure such violations after ten day written notice from your landlord.” The notice is bereft of any factual allegations that the violations complained of continued beyond the cure period. In this regard respondent cites a number of decisions in which petitions were dismissed because the notice of termination failed to state facts that constituted the misconduct or breach that occurred subsequent to the notice to cure and where the notice of termination failed to allege facts to support the claim that the tenant failed to comply with the notice to cure. Hew-Burg Realty v. Mocerino, 163 Misc 2d 639 (Civ Ct, Kings County 1994) (citing McGregor Arms Realty Co v. Bowie, NYLJ, December 12, 1990, p 25, col 5 [Civ Ct, Richmond County]), Dealmedia v. Cabreiro, NYLJ, March 8, 1989, p 27, col 5 (Yonkers Cty Ct), and David Realty v. Greenberg (Civ Ct. Kings County, July 28. 1994. Index No. 77367/94); 76 West 86th Corp v. Junas, 45 NYS 3d 921 (Civ Ct, New York County 2017) (an illegal sublet case, as here); CDC E 105th St Realty v. Mitchel, NYLJ 1202785511936, at *1(Civ Ct, New York County 2017); 260-262 St. James Investors LLC v. Ford NYLJ 1202780678402, at *1 (Civ Ct, Kings County 2016); Third Housing Co. Inc v. Velez, NYLJ 1202787007020, at *1 (Civ Ct, Queens County 2017); Second Housing Co. Inc v. Davis, NYLJ 1202772251405 (Civ Ct, Queens County 2016); See also, 1025-45 Associates Inc. Tate, NYLJ 1202794404370, at *1 (Civ Ct, Kings County 2017); Volunteers of America v. Johnson, NYLJ 1202784918482, at *1 (Civ Ct, Kings County 2017); 31-67 Astoria Corp v. Landaira, 54 Misc3d 131(A) (App Term, 2nd Dept 2017).Petitioner is correct that in most of the cited cases the courts make reference to the fact that the notices of termination were dated one, two, or three days after the date by which the respondents were required to cure; while here, the notice of termination was dated some nineteen days after the date by which the respondent was required to cure. However, the court does not find this distinction to be dispositive. Regardless of the distinction, the fact remains that the notice of termination does not contain any factual allegations in support of its conclusion that respondent failed to comply with the notice to cure.In its opposition papers petitioner submits an affidavit of its compliance manager which contains new alleged information. To the extent that this affidavit purports to submit new proof, not included in the notice of termination, of respondent’s continued violations subsequent to the expiration of the cure period, it cannot be considered by the court. The court must examine the four corners of the termination notice itself which cannot be added to for the first time in an affidavit submitted in opposition to respondent’s motion. “[S]ervice of a proper notice of termination is a condition precedent to the termination of the tenancy.” Caiado v. Bishoff, 140 Misc 2d 1014 (Civ Ct, New York County 1988).As the predicate notice of termination does not contain specific factual allegations in support of its conclusory statement that respondent failed to comply with the notice to cure, it is fatally defective as a matter of law. Accordingly, respondent is granted summary judgment dismissing the petition. As a result the court does not reach that portion of respondent’s motion seeking dismissal based upon respondent’s alleged cure of the violation of the lease.This constitutes the decision and order of the Court.Dated: Brooklyn, New YorkMay 2, 2018
