Recitation, as required by CPLR section 2219(a), of the papers considered in the review of this motion seeking dismissal of the petition and for further relief:Papers NumberedNotice of motion, affirmation, affidavit and exhibits annexed 1Affidavit in opposition 2Affirmation in Reply 3DECISION/ORDER AFTER ARGUMENT Petitioner commenced this summary holdover proceeding after having terminated respondent’s rent stabilized tenancy because petitioner wants the apartment for use by family members and that respondent violated a substantial obligation of her tenancy by charging her roommate more than a proportional share of the rent. Respondent appeared by counsel and moves to dismiss. (Respondent did not cite the provision by which she moves.) Respondent cites several reasons for dismissal: petitioner lacks standing; trustees may not bring owner’s use proceedings pursuant to the Rent Stabilization Code (“RSC”); the allegations regarding breach of a substantial obligations of tenancy are improper; the predicate notice fails to state the specific facts underlying the owner’s use cause of action; and respondent’s alleged overcharging of her roommate is not a basis for eviction. The court will address several of the grounds in turn.Regarding standing, respondent produces a deed which shows that George Prasinos and Marousa Prasinos transferred the subject building to the George and Marousa Prasinos Revocable Living Trust (the “Trust”) on August 3, 2017, prior to issuance of the Golub notice. (See Notice of Motion, Exhibit A.) By stipulation dated March 15, 2018, respondent consented to amend the caption of the case to reflect the Trust as petitioner. Therefore, this argument has been rendered moot.Respondent argues that a trust may not exercise the owner’s use provision of the RSC. RSC (9 NYCRR) §2524.4(a)(3) provides that an owner’s use holdover may be commenced by:one of the individual owners of any building, whether such ownership is by joint tenancy, tenancy in common, or tenancy by the entirety to recover possession of one or more dwelling units for personal use and occupancy.The landlord must be a “natural person.” Henrock Realty Corp v. Truck, 52 AD2d 871 (2nd Dept 1976). This court must follow that precedent until a contrary rule is established. (See D’Alessandro v. Carro, 123 AD3d 1, 6 [1st Dept 2014].) “A trustee is a legal construct rather than a natural person.” Rizzuto v. Gabb, 140 Misc2d 98, 99 (Civ Ct, Kings County 1988). Therefore, viewed through the prism of Henrock, a trustee may not bring an owner’s use holdover. Petitioner cites Radol v. Centento, 165 Misc2d 448 (Civ Ct, Queens County 1995), for the proposition that a trustee may bring a holdover proceeding. Yet, the decision is not persuasive at it did not address the standing, or lack thereof, of a trustee. As noted by respondent, the binding precedent of Henrock involved a corporation whose principal was its sole shareholder. Therefore, the individual was ascertainable and yet, the Appellate Division forbid the corporation from proceeding. Therefore, petitioner lacks standing.Even if petitioner did have standing, other errors further support dismissal. The June 1, 2017 letter sent by petitioner to respondent does not satisfy the requirements of the RSC. (See Affidavit in Opposition, Exhibit E.) This letter alleged that respondent was illegally subletting the unit and charging her roommate more than her proportional share of the rent. (Citing RSC §§2525.6(f) and 2525.7(b).) Petitioner failed to provide respondent with an opportunity to cure this alleged sublet, in violation of RSC §2204.2(a)(1). The notice (see Affidavit in Opposition) must be specific as to the time period in which respondent must cure. Petitioner’s June 1, 2017 letter fails to do so. ATM One, LLC v. Landeverde, 2 NY3d 472, 472 (2004). Also, the notice (see Affidavit in Opposition, Exhibit E) fails to state that the leasehold will be terminated if the behavior does not cease, which is a requirement of a predicate notice. SAAB Enterprises, Inc. v. Bell, 198 AD2d 342, 343 (2nd Dept 1993). Therefore, it is defective regarding the illegal sublet allegation.The predicate notice is also defective regarding the owner’s use allegations. A predicate notice must be reasonable under the attendant circumstances. Hughes v. Lenox Hill Hospital, 226 AD2d 4, 18 (1st Dept 1996). In the owner’s use context, a notice of nonrenewal that states that the owner wanted the premises for her or his immediate family, and listed the family member’s name, and the good faith intention of the family member to take occupancy satisfied the RSC. Matter of Giancola v. Middleton, 73 AD3d 1056, 1057 (2nd Dept 2010). Since petitioner’s notice of nonrenewal neither stated the name of the individual who intended to occupy the premises nor their good faith intention, it is defective.Moreover, RSC §2525.7(b), cited by petitioner in support of its termination of the lease based upon respondent’s disproportionate charging of rent to her roommate, does not provide a cause of action for termination of her lease. First Hudson Capital, LLC v. Seaborn, 54 AD3d 251, 252 (1st Dept, 2008). This represents a further ground for dismissal.Based on the foregoing, the petition is dismissed without prejudice. Given the multiple reasons for dismissal already addressed, the court reaches no other issue raised in the papers.This constitutes the decision and order of this court.Date: 5-15-18
