Recitation, as required by CPLR §2219(a), of the papers considered in the review of Respondent’s Motion.PAPERS NUMBEREDRespondent’s Notice of Motion, Affirmation in Support, Affidavit in Support & Exhibits (“A” — “E”) 1, 2, 3Affirmation in Opposition, Affidavit in Opposition & Exhibit (“A”) 4,5Reply Affirmation 6DECISION/ORDER Upon the foregoing cited papers, the Decision and Order is as follows: This holdover proceeding was commenced by petitioner on two theories of law, to wit: (a) illegal sublet of the subject premises1 and (a) illegal use of the subject premises. The predicate Notice of Termination in its entirety sets forth the facts in support of petitioner’s allegations as follows:1. The tenant has walled off the Subject Apartment to create separate living quarters for two individual subtenants.2. Upon information and belief Luis Coronel, Maria Torres and individuals whose identity is unknown to the landlord have been occupying the Subject Apartment for varied brief periods of time.3. Upon information and belief, the Tenant is collecting twice the amount of the stabilized rent for the Subject Apartment from the tenants.This court is familiar with the case law cited by petitioner concerning how a court should construe pleadings. That obligation, however, is never considered, nor applied, in a vacuum. CPLR Section 3013 specifically states:Statements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense (emphasis supplied).This statute reflects the doctrine of law espoused by the courts of this state years ago that a pleading that only cites general conclusions is insufficient as a matter of law. See Kalmanash v. Smith, 291 N.Y. 142, 153 (1943).Here, the Notice of Termination does not contain the material elements that would establish a cause of action for illegal sublet, e.g. another residence for respondent indicating lack of co-occupancy with the current occupants, ie. a subletting of the premises2. At best, the facts presented in the Notice of Termination allege a violation of Section 2525.7(b) of the Rent Stabilization Code (“RSC”) for overcharging a roommate by charging more than the roommate’s proportionate share, with respect to which the courts have held that no cause of action for eviction is available to a landlord. See First Hudson Capital, LLC v. Seaborn, 54 A.D.3d 251 (1st Dept. 2008), appeal dismissed, 11 N.Y.2d 894 (2008). Any cause of action based upon an overcharge by a roommate is strictly available to the overcharged tenant3.Even prior to the enactment of RSC Section 2525.7, the Appellate Division, First Department in 520 E. 81st St. Assoc. v. Roughton Hester, 157 A.D.2d 199, 202 (1st Dept. 1990), held:Unlike the section pertaining to sublets, the paragraph in which the Legislature introduced the Roommate Law stresses the need to permit such living arrangements to continue and does not mention the elimination of speculation and profiteering as a purpose underlying the enactment of the statute. We conclude that this omission was deliberate and decline to impose the restrictions against profiteering in sublet situations to living arrangements involving roommates….In sum, neither the lease nor any law governing rent stabilized apartments permit a landlord to evict a tenant for earning a profit from the rent charged a roommate (citations omitted).This court rejects the attempt by petitioner to label as a sublet case what is a different cause of action.The same standard exists in a proceeding brought under RSC Section 2524.3. Appellate Term, First Department, in 128 Second Realty LLC v. Dobrowolski, 51 Misc. 3d 147(A) at * 2 (App. Term, 1st Dept. 2016), dismissed a holdover brought pursuant to CPLR Section 3211(a)(7), which had been commenced under RCS Section 2524.3(d) for a transient hotel, and found that a “landlord’s vague and conclusory allegations…provide an insufficient basis for failing to dismiss a patently defective holdover petition,” noting “the absence of any specific factual allegations which would support landlord’s claims that tenant [was] utilizing the stabilized apartment as an ‘unlawful hotel’ or causing the apartment to be utilized on a ‘transient basis’ in violation of the law.” In the case at bar, the notice of termination fails to establish sufficient facts, as required, to support the claim that the non-tenants’ occupancy actually constitutes a sublet. See 888 E. 96th St., LLC v. Hargrove, 61 Misc. 3d 137(A) (App. Term, 2d Dept. 2018)Even if petitioner had properly pled a cause of action for sublet, this case, nonetheless, would not, by the mere fact of the sublet itself, come under the purview of RSC Section 2524.3(c). An allegation of illegal sublet, without more, does not constitute an illegal act as contemplated by that section, nor does it normally subject a landlord to civil or criminal penalties4.The standard for determining whether a preliminary notice is sufficient is one of reasonableness in view of the attendant circumstances. The Notice of Termination is lacking in material elements sufficient to support the causes of action as pled. With respect to the cause of action for sublet, the notice fails to meet the specificity requirement of RSC Section 2524.2(b). See Berkeley Assoc. Co. v. Camlakides, 173 A.D.2d 193, (1st Dept. 1991), aff’d 78 N.Y.2d 1098 (1991). Measured against the test of reasonableness (see Oxford Towers Co., LLC v. Leites, 41 A.D.3d 144 (1st Dept. 2007)), the impermissibly vague allegations in the notice “render the entire notice deficient”, 542 Holding Corp. v. Prince Fashions, Inc., 46 A.D.3d 309, 311 (1st Dept. 2007); see generally Singh v. Ramirez, 20 Misc. 3d 142(A) (App. Term. 2d Dept. 2008).For the reasons stated, and pursuant to CPLR Section 3211(a)(7), this court grants that portion of respondent’s motion seeking dismissal of this proceeding based upon the petitioner’s failure to state a cause of action5.The balance of respondent’s motion is denied, and respondent’s counterclaims are dismissed without prejudice. Respondent has not presented any argument, case law or statutory authority, to support his request that upon dismissal of the case in chief the counterclaims should not be severed and should proceed to trial. Furthermore, respondent has presented no case law or statutory authority to support his claim that the rejection of a negotiated buy-out, followed by the commencement of a holdover proceeding, may constitute a retaliatory eviction. Respondent is free to pursue his harassment claim in the HP part where the same relief can be awarded, provided respondent proves his allegations, which are refuted by petitioner. As for the claim of retaliatory eviction, respondent may reassert that claim, if petitioner commences another proceeding seeking the tenant’s eviction, assuming it is grounded in law and fact.This constitutes the Decision and Order of the Court.SO-ORDEREDDated: January 22, 2019
