Recitation, as required by CPLR section 2219(a), of the papers considered in the review of this motion to dismiss:Papers NumberedNotice of motion, affirmations and exhibits annexed 1Affirmation in opposition 2Affirmation in reply 3DECISION/ORDERAFTER ARGUMENT Petitioner commenced this summary holdover proceeding based upon respondents’ alleged breaches of the lease for 88-35 162nd Street, Apt. 3-H, Jamaica, New York 11432 (the “subject premises”). The subject premises are subject to the Rent Stabilization Law of 1969. (See petition, Para. 8.) The petition alleges that respondents are guilty of overcrowding, creating excessive noise and improperly storing items on the fire escape. Respondent, Carmen Rodriguez, retained counsel and moves to dismiss for failure to state a cause of action (CPLR 3211(a)(7)), or alternatively, leave to interpose an amended answer. (CPLR §3025(b).)”(O)n a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory.” (Siracusa Sager, 105 AD3d 937, 938 [2nd Dept 2013] quoting Breytman v. Olinville Realty, LLC, 54 AD3d 703, 703-704.)In reviewing the sufficiency of the notice of termination, the law requires that a predicate notice be reasonable under the attendant circumstances. (Hughes v. Lenox Hill Hospital, 226 AD2d 4, 18 [1st Dept. 1996].) In particular, RSC 2524.2(b) requires the termination notice to state “the facts necessary to establish the existence” of a ground for eviction. The notice must offer specific facts so as to provide the tenants with sufficient notice of the case against them. (Kaycee West 113th Street Corp. v. Diakoff. 160 AD2d 573, 574 [1st Dept. 1990]). While dates and times are not required in a predicate notice, it is relevant to the court’s inquiry as to the sufficiency of the notice. (Domen Holding Co v. Aranovich, 1 NY3d 117, 124 [2003].)The pleadings and predicate fail to state a cause of action for breach of lease or overcrowding. The purpose of a notice to cure is “specifically to apprise the tenant of claimed defaults in its obligations under the lease and of the forfeiture and termination of the lease if the claimed default is not cured within a set period of time.” (542 Holding Corp. v. Prince Fashions, 46 AD3d 309 [1st Dept 2007].) Indeed, the Second Department has held that one element of a proper notice to cure is the specific paragraph(s) in the lease which the tenant breached. (See King Party Center of Pitkin Ave., Inc.v. Minco Realty, LLC, 286 AD2d 373 [2nd Dept 2001].) Petitioner’s notice to cure does not refer to any paragraphs of the lease between the parties or language of the lease which respondents allegedly breached. These are fatal defects.The predicate notice is also confusing and ambiguous. In 1 of the notice to cure, petitioner alleges alternatively that respondents violated a substantial obligation of their lease and failed to cure it, or that they are willfully violating a substantial obligation of their lease and causing the petitioner serious and substantial injury. (Notice of Motion, Exhibit A.) In the next paragraph of the notice to cure, petitioner states it intends to terminate the lease unless respondents cure several alleged breaches. (Id.) Yet, some of the allegations sound in nuisance, such as the allegations of loitering and loud behavior. Despite these allegations, the notice to cure fails to cite that portion of the Rent Stabilization Code which provides the grounds for a nuisance proceeding. (RSC §2524.3(b).) Thus, the notice to cure is confusing and fails to advise the respondents of what must be done to preserve the tenancy. (See 542 Holding Corp. Prince Fashions, 46 AD3d 309, supra.) A defect in a predicate notice cannot be amended. (Chinatown Apartments, Inc. v. Chu Cho Lam, 51 NY2d 786 [Civ Ct, NY County 1980].)Respondents also argue that petitioner failed to afford them 10 days to cure the alleged breaches of lease. Respondents cite ATM One, LLC v. Landeverde, 2 NY3d 472 (2004) for the proposition that if a notice to cure for a rent stabilized apartment is served by mail, five additional days must be added in determining the cure date. Thus, a landlord must mail a ten — day notice to cure fifteen days before the cure date. Petitioner served the notice to cure by conspicuous place service on April 12, 2018 with mailings the following date. (Notice of Motion, Exhibit A.) The cure date was April 26, 2018. (Id.) Respondent contends the Landeverde rule applies to conspicuous place service, while petitioner disagrees. Neither party cited an appellate decision directly on point. The court is aware of two trial court decisions which held Landeverde applies to conspicuous place service: C&H Mgmt. LLC v. Scarpelli, July 7, 2009, NYLJ at 25, col 2, 2009 N.Y. Misc. LEXIS 2524 (Civ Ct, Kings County) and Pierre A. Papadeas v. Eric West, L&T Index 54327/2010, NYLJ 1202474563759 (Civ Ct, Kings County). The court is also aware of a trial court decision declaring that Landeverde does not apply to conspicuous place service: 170 East 77th 1 LLC v. Berenson, 12 Misc3d 1017 (Civ Ct, NY County 2006). Without either party providing appellate law to resolve this dispute, and there being other bases for dismissal, the court need not resolve this question.Based on the foregoing, respondent’s motion seeking dismissal is granted without prejudice. The court reaches no other issue.This constitutes the decision and order of this court.Dated: 09-21-18
