RECITATION, AS REQUIRED BY CPLR 2219(A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION BY RESPONDENT TO DISMISSPAPERS NUMBEREDNotice of Motion, Affidavits & Affirmation Annexed 1-3Answering Affidavits 15-19Replying Affidavits & Affirmation Annexed 25-26Exhibits 4-14, 20-24, 27-29DECISION/ORDERUPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS: Petitioner commenced this summary holdover proceeding on or about on March 20, 2018 seeking to recover possession of apartment # 1-A, a rent stabilized apartment, located at 1038 Anderson Avenue, Bronx, New York. The petition alleges that Respondents Diarra and Dassarwende have illegally sublet the premises and permitted other persons to occupy the apartment without Petitioner’s consent.The proceeding first appeared on the Court’s calendar on April 18, 2018. Respondent Tokpovi appeared by counsel, and the proceeding was adjourned to May 29, 2018 for motion practice. On May 29, 2018, the proceeding was adjourned to July 11, 2018 for the submission of opposition papers and for oral argument.Respondent Tokpovi moves to dismiss pursuant to CLR §3211(a)(7), arguing that the allegations in the Notice to Cure and the Notice of Termination are confusing, contradictory, and/or lack the requisite specificity and that Petitioner has failed to state a cause of action.Respondent Tokpovi argues that the Notice to Cure is contradictory because the notice first states that the curing conduct “would be required to occur before the cure date below” but later in the same notice states that “you have until February 19, 2018…to cure the above defaults.”Respondent Tokpovi argues that although Petitioner started an illegal sublet holdover, Petitioner failed to allege any facts to support the assertion that Respondents Diarra and Dassarwende created a sub-tenancy with Respondent Tokpovi. Respondent further argues that Respondent Tokpovi is the rightful tenant of the subject apartment because he entered into a rental agreement with the building manager, Benjamin Sanchez.Respondent Tokpovi further argues that the Notice of Termination is defective because it refers to an alleged conversation between Petitioner’s agent, Mr. Sanchez, and Respondent Tokpovi that occurred on February 22, 2018. However, the Notice of Termination is dated February 20, 2018. Respondent further alleges that the Notice of Termination is defective because it does not specifically allege that Respondents Diarra and Dassarwende have not been seen at the premises since the expiration of the Notice to Cure, rather, it states that Respondents have not been seen since the Notice to Cure was served (emphasis added). Lastly, Respondent Tokpovi argues that he has a lease agreement with Petitioner which bars Petitioner from bringing the instant action.In opposition, Petitioner contends that the predicate notice is sufficient because it is reasonable in view of the attendant circumstances. Petitioner argues that the date on the Notice of Termination is a simple typographical error and could not have materially misled Respondents. Petitioner further argues that the Notice to Cure is not defective because the terms “before” and “until” are not legally contradictory. Lastly, Petitioner argues that the purported lease between Respondent Tokpovi and Petitioner is simply an unsigned document consisting of notes from Petitioner’s agent, and that said document is not sufficient to form a binding contract between the parties.Pursuant to CPLR §3211, a party may move for judgment dismissing one or more causes of action asserted against him. “On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction…we accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory”, and “a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint and ‘the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one’” (Leon v. Martinez, 84 NY2d 83, 614 NYS2d 972 [1994] [internal quotation marks and citation omitted]).It is well-settled that the right to terminate a tenancy is dependent upon the service of an adequate notice (see Chinatown Apts v. Chu Cho Lam, 51 NY2d 786, 787 [1980]). Decisional authority provides that service of a valid termination notice is a prerequisite to the commencement of a statutory holdover proceeding (see Kaycee West 113th St. Corp. v. Diakoff, 160 AD2d 573 [1st Dept 1990]). “In evaluating the facial sufficiency of a predicate notice in a summary eviction proceeding, the appropriate test is one of the reasonableness in view of attendant circumstances” (Oxford Towers Co., LLC v. Leites, 41 AD3d 144, 837 NYS2d 131 [1st Dept 2007]) citing Hughes v. Lenox Hill Hospital, 226 AD2d 4, 651 NYS2d 418 [1996]). In assessing the notice, the Court looks at whether the notice materially misled or confused the tenant or hindered the preparation of his defense (see Leites, supra).Measured against the test of reasonableness in view of the attendant circumstances, this Court finds the notices defective. The Notice of Termination states that Petitioner’s agent, Benjamin Sanchez, visited the subject premises on February 22, 2018 and spoke with Respondent Tokpovi who confirmed that he was still living at the subject premises and that Respondents Diarra and Dassarwende had not moved back in. The Notice of Termination was initially dated February 20, 2018, two days prior to the date the alleged conversation took place. Petitioner attempted to correct this error by changing the date of the Notice of Termination from February 20, 2018 to February 23, 2018, however, Petitioner’s affidavit in support of its opposition papers leads to further confusion about when the alleged conversation took place. The affidavit of Petitioner’s agent, Jerome Waxenberg, states that “the reference to February 22, 2018, a date in the future, and Mr. Sanchez’s being at the building and speaking with Mr. Tokpovi is clearly a typo as the actions of Mr. Sanchez took place on February 20, 2017….”, the year before. Adding to the confusion is the affidavit of Mr. Sanchez himself, in which he states that the conversation did take place on February 20, 2018. These statements prevent the Court from being able to ascertain when the alleged conversation with Respondent Tokpovi actually took place as there are now three conflicting dates. In addition, the Court notes that although the petition alleges that Respondent “improperly/illegally sublet or assigned the apartment without the permission of the landlord” (emphasis added), neither the Notice to Cure nor the Notice of Termination contain any facts to support Petitioner’s claim of an assignment.Based on the foregoing, Respondent’s motion is hereby granted. The proceeding is dismissed without prejudice to a proceeding based on a proper notice. The Court does not reach the remainder of the parties’ arguments as the inadequacy of the Notice of Termination is dispositive of the proceeding.This constitutes the decision and order of the Court.Dated: December 11, 2018
