Recitation, as required by CPLR 2219(a), of the papers considered in review of: Respondent’s motion to dismissPapers NumberedMotion to dismiss 1Affirmation in opposition 2Respondent’s affirmation in reply 3DECISION AND ORDER This summary holdover proceeding is brought by petitioner pursuant to §2524.3(a) alleging a breach of a substantial obligation of the respondent’s tenancy. Petitioner further claims that respondent has committed or permitted a nuisance and objectionable conduct. Both parties are represented by counsel.Respondent moves pursuant to CPLR §3211(a)(7) for dismissal due to failure to state a cause of action upon two grounds: (1) the lack of the required specificity in the notice to cure and notice of termination; and (2) the failure to state facts that constituted the breach or misconduct that occurred subsequent to the notice to cure in the notice of termination. In the alternative respondent seeks leave to interpose an answer.Petitioner opposes the motion asserting that a sufficient cause of action was pled and that the court has jurisdiction. Petitioner further argues that the notice to cure was not required and that the notice of termination is sufficient on its own.As this is a pre-answer motion, the court examines this motion under CPLR §3211 (a) (7).1 While the court is limited to the four corners of the pleadings in a motion to dismiss and must accept all allegations as true, an examination of the predicate notices is appropriate as they are incorporated into the petition. Furthermore, a proper predicate notice is a condition precedent to initiating a holdover proceeding and may not be amended. Chinatown Apartments, Inc. v. Chu Co Lam, 51 NY2d 786 (1980); Caiado v. Bishoff, 140 Misc 2d 1014 (Civ Ct, New York County 1988), (“[S]ervice of a proper notice of termination is a condition precedent to the termination of the tenancy”).LACK OF SPECIFICITY IN THE NOTICE TO CUREIn determining whether a predicate notice is sufficient on a motion to dismiss, the court must consider the facts and pleadings in the light most favorable to the nonmoving party. Ampolini v. Long IsId. Light Co.,186 AD 2d 772 (2d Dept 1992). Due process as well as RPAPL §§713 and 741(4) requires that respondent be confronted with a petition and predicate notice which adequately set forth the facts upon which the special proceeding is based and the failure to serve a proper predicate notice requires dismissal of the proceeding. See, Chinatown Apartments, Inc. v. Chu Cho Lam, supra.The court must determine whether the notice is definite, unequivocal, and states the defaults with sufficient particularity that the respondent is able to understand the claim and mount a defense. Giannini v. Stuart, 6 AD2d 418 (App Term, 1st Dept 1968); Carriage Court Inn Inc. v. Rains, 138 Misc 2d 444 (Civ Ct, New York County 1988); 297 Lenox Realty Co. v. Babel, 19 Misc 3d 1145(A) (Civ Ct, Kings County 2008). The appropriate standard is one of reasonableness in view of all the attendant circumstances. Hughes v. Lenox Hill Hospital, 226 AD2d 4, 17(1st Dept 1996), Iv denied 90 NY2d 829; Avon Band Co v. Aquarian Foundation, 260 AD2d 207 (1st Dept 1999), appeal dismissed 93 NY2d 998.While there is no absolute requirement that the notice contain dates and times of the alleged incidents, where the alleged conduct is subject to being identified by date and time, it may be found fatally defective for failure to include such information. See 297 Lenox Realty Co. v. Babel, supra, analyzing City of NewYork v. Valera, 216 AD2d 237 (1995) and Carriage Court, supra. That is the case here.The “10-Day Notice of Default” (hereinafter referred to as the notice to cure), dated January 16, 2018, alleges that the tenant has violated a substantial obligation of her tenancy in violation of 2524.3(a); and lists examples for how she has allegedly created a nuisance under 2524.3 (b), including the harassment of tenants, disturbing levels of noise, smoking and using drugs, and sleeping in the stairwells and other common areas. The notice does not include any dates or times, except as to an allegation that respondent had “in the last three months, harassed other tenants so egregiously that they were compelled to management….” The notice does not indicate the dates that management was forced to contact the police “on at least three occasions” due to respondent’s smoking and drug use in the common areas. The notice contains no description as to what acts of harassment, such as the nature, frequency, or severity of these acts that respondent or her family members are alleged to have committed against other tenants. There are no dates, indication of duration or frequency, or description of the person(s) alleged to have slept in the stairwells and common areas or to have created “disturbing levels of noise” in the common areas.The court finds that the notice to cure lacks sufficient specificity and factual allegations to establish grounds for eviction as required by 2425.2, 2425.3 and relevant case law. The allegations against respondent are of the nature where specific dates and times are readily identifiable and should have been included in the predicate notices-especially those instances in which petitioner alleges that tenants went to management and that management called the police.FAILURE OF THE NOTICE OF TERMINATION TO ALLEGE ANY INCIDENTS OR CONDUCT THAT OCCURRED SUBSEQUENT TO THE EXPIRATION OF THE NOTICE TO CURECourts have dismissed cases for deficient predicate notices where the notice of termination did not allege new facts that exhibit misconduct or breach that occurred subsequent to the termination of the cure period. 31-67 Astoria Corp v. Landaira, 54 Misc3d 131(A) (App Term, 2nd Dept 2017); Hew-Burg Realty v. Mocerino, 163 Misc 2d 639 (Civ Ct, Kings County 1994); 76 West 86th Corp v. Junas, 45 NYS 3d 921 (Civ Ct, New York County 2017); 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 v. Tate, NYLJ 1202794404370, at *1 (Civ Ct, Kings County 2017); Volunteers of America v. Johnson, NYLJ 1202784918482, at *1 (Civ Ct, Kings County 2017); Webster Bldg A LLC v. Mitchner, 2018 NYLJ LEXIS 2623 (Civ Ct, Bronx County 2018); and this court’s decision in BEC Continuum Owners v. Taylor, 2018 NYLJ LEXIS 1821 (Civ Ct, Kings County 2018).The notice of termination states only that respondent failed to comply with the notice to cure, which it incorporates into the notice of termination. It is devoid of any new factual allegations that the violations complained of continued beyond the cure period. Moreover, in dismissing the petitions, most of the above cited cases make an important 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. In the instant case the notice of termination was dated only one day after the date by which respondent was required to cure. It does not contain any factual allegations in support of petitioner’s conclusion that as of the next day after the respondent was required to cure, respondent continued to engage in the conduct complained of. Petitioner could not have had enough time to make any investigation as to whether respondent cured.Petitioner argues that a notice to cure was not required, therefore subsequent facts are not necessary because the notice of termination can stand on its own. A notice to cure is required for proceedings brought for alleged violations of a substantial obligation of the tenancy, but not for proceedings brought for allegations of nuisance. Rent Stabilization Code §§2524.3(a) and 2524.3(b), respectively. The notice to cure and notice of termination state that respondent has breached a “substantial obligation of [her] tenancy,” citing §2524.3 (a), but fail to indicate any specific provision of the lease and instead, list manners in which she has created a nuisance under §2524.3(b). The notices are unclear as to which provision it brings this holdover.Regardless of whether the notice to cure was needed, the notice of termination on its own is insufficient as it fails to allege sufficient facts. Spivack Realty v. Svobodny, 21 Misc 1147(A) (Nassau Dist Ct 1988) (nuisance holdover dismissed where the notice of termination was found defective as it failed to state specific examples of nuisance behaviors, dates, times, or names of tenants alleged to have been affected by the alleged nuisance). See also 260-262 St. James Investors; supra; and Gloreen Realty LLC v. Wright, 51 Misc. 3d 1223(A) (Civ Ct Kings Co 2016).The lack of detail and specificity in the predicate notices and the lack of any basis for petitioner’s conclusion that respondent failed to cure render the predicate notices fatally defective and warrant dismissal of the petition for failure to state a cause of action. Accordingly, respondent’s motion is granted and the petition herein is dismissed.This constitutes the decision and order of the Court.Dated: Brooklyn, New YorkAugust 9, 2018
