Recitation, as required by CPLR 2219(a), of the papers considered in review of Respondent Eileen Pabon’s motion to dismiss.Papers NumberedNotice of Motion with Affirmation, Affidavit and Exhibits Annexed 1Answering Affirmation, Affidavit and Exhibit Annexed 2Replying Affirmation 3DECISION/ORDER After oral argument and upon the foregoing cited papers, the decision and order on this motion is as follows:Petitioner 3424 Dekalb Associates, LLC (“Petitioner”) has commenced this holdover proceeding against Respondent Eileen Pabon (“Respondent”), pursuant to Rent Stabilization Code §2524.3(a), alleging she has breached a substantial obligation of her tenancy by being chronically delinquent in the payment of her rent and failing to pay her rent by the 1st day of each month. Petitioner alleges it served a notice of termination on Respondent as a predicate notice to this proceeding, incorporated by reference into the petition, which states the facts to support its cause of action — that it has commenced five (5) court proceedings against Respondent since 2008: a non-payment proceeding in 2008; two (2) non-payment proceedings in 2009; a holdover proceeding based on Respondent’s alleged chronic non-payment of rent in 2012; and another non-payment proceeding in 2017. The Housing Court index number is provided for each of these proceedings.Additionally, the notice of termination provides information regarding each of the above stated eviction proceedings including how long each proceeding was pending and the amounts owed in rent throughout the proceedings. In relation to the 2012 holdover proceeding, Petitioner alleges the proceeding was discontinued, after pending for approximately fifteen (15) months, at the end of a probationary period agreed upon by the parties and extended by the court.Further, Petitioner has alleged that during the first six (6) months of 2018 Respondent has paid her full rent within the month it came due only once (in March 2018) and paid all but $4.98 of her rent another month (June 2018).1 No rent has allegedly been paid for the other four (4) months starting 2018.Respondent, who asserts she has resided in the apartment for forty-seven years, has moved to dismiss the proceeding, pursuant to CPLR 3211(a)(2) and (7),2 arguing Petitioner has failed to state a cause of action. Petitioner has opposed the motion.Failure to State a Cause of Action — CPLR 3211(a)(7)In reviewing a motion to dismiss for failure to state a cause of action, pursuant to CPLR 3211(a)(7), a determination must be made as to whether the factual allegations within the petition state a legally cognizable cause of action. Leon v. Martinez, 84 NY2d 83 (1994); Clarke v. Laidlaw Transit, Inc., 125 AD3d 920 (2d Dept 2015); Fishberger v. Voss, 51 AD3d 627 (2d Dept 2008). In performing this review, the court must afford the petition a liberal construction, accept all facts alleged in the petition as true and accord the petitioner the benefit of every possible inference. Leon v. Martinez, 84 NY2d 83 (1994); Nationwide Insulation Sales, Inc. v. Nova Casualty Co., 74 AD3d 1297 (2d Dept 2010); Breytman v. Olinville Realty, LLC, 54 AD3d 703 (2d Dept 2008).The sufficiency of a pleading is measured against what is required in a particular case. East Hampton Union Free School Dist. v. Sandpebble Bldrs., Inc., 66 AD3d 122 (2d Dept 2009). Moreover, a predicate notice must be reasonable under the circumstances. Oxford Towers Co., LLC v. Leites, 41 AD3d 144 (1st Dept 2007); 323 3rd St. LLC v. Ortiz, 13 Misc 3d 141(A) (App Term 2d & 11th Jud Dist 2006); D.K. Property Inc. v. Mekong Restaurant Corp., 187 Misc 2d 610 (App Term 1st Dept 2001), quoting Hughes v. Lenox Hill Hospital, 226 AD2d 4 (1st Dept 1996), lv denied 90 NY2d 829 (1997).Petitioner is bound by the notice of termination it has served (Domen Holding Co. v. Aranovich, 302 AD2d 132, 134 [1st Dept 2003], mod on other grounds 1 NY3d 117 [2003]) which is not amendable. Chinatown Apartments, Inc. v. Chu Cho Lam, 51 NY2d 786 (1980); Henry and Baltic Associates v. K & Q Food Corp., 7 Misc 3d 83 (App Term 2d & 11th Jud Dist 2005). Therefore, whether a cause of action has been stated is based solely on the language in the notice of termination and petition. A defect in a predicate notice cannot be cured by papers submitted in opposition to a motion to dismiss. Dowarp Realty Co. v. Acevedo, NYLJ, Apr 3, 1990 at 26, c 2 (App Term 1st Dept).Although there is no specific number of underlying non-payment proceedings necessary to support a cause of action that, as asserted here, Respondent has breached a substantial obligation of her lease by chronically paying rent late, a history of repeated non-payment proceedings commenced by a landlord, or the repeated need for a landlord to resort to legal processes to collect rent payments that are late, is required for this type of proceeding. Definitions Personal Fitness, Inc. v. 133 E. 58th St. LLC., 107 AD3d 617 (1st Dept 2013); PWV Acquisition, LLC v. Maddox, 8 Misc 3d 127(A) (App Term 1st Dept 2005); Adam’s Tower Ltd. Partnership v. Richter, 186 Misc 2d 620 (App Term 1st Dept 2000).The crux of Respondent’s argument as to why this proceeding should be dismissed is that Petitioner should be barred from utilizing the eviction proceedings cited in the notice of termination as the basis for this chronic non-payment proceeding. As a result, she argues Petitioner has failed to state a cause of action in that it has not stated a sufficient history of repeated non-payment proceedings that have been commenced against her to collect rent.Specifically, Respondent argues the non-payment proceeding from 2008 and the two (2) non-payment proceeding from 2009, alleged in the notice of termination should be barred from consideration in this proceeding by the statute of limitations. Also, Respondent asserts the 2012 chronic non-payment holdover proceeding should be barred from consideration herein based on res judicata and that she raised a defense in the 2017 non-payment proceeding that Petitioner had breached the warranty of habitability (RPL §235-b) — thereby negating the use of that proceeding as a basis for this holdover proceeding.In opposition, Petitioner does not address Respondent’s statute of limitations argument. Instead, it denies Respondent had any bona fide defenses, including a breach of the warranty of habitability, in the underlying eviction proceedings, that any of the earlier cases involved an abatement or that Respondent was justified in withholding rent for repairs. Moreover, Petitioner argues that even if Respondent made an allegation related to the need for repair work in the apartment in an earlier case that does not invalidate the use of the earlier non-payments as the basis of this proceeding.The statute of limitation on a breach of lease cause of action, as is pled in this proceeding, is six (6) years. CPLR 213(2); Barklee 94 LLC v. O’Keefe, 18 Misc 3d 134(A) (App Term 1st Dept 2008); Adam’s Tower L.P. v. Lynch, NYLJ Jan. 24, 2007 at 33, c 2 (Civ Ct NY County 2007). However, the statute of limitation on a claim does not begin to run until the cause of action accrues. CPLR 203(a); Barklee 94 LLC v. O’Keefe, 18 Misc 3d 134(A) (App Term 1st Dept 2008); Westminister Properties, Ltd. v. Kass, 163 Misc 2d 773 (App Term 1st Dept 1995); Adam’s Tower L.P. v. Lynch, NYLJ Jan. 24, 2007 at 33, c 2 (Civ Ct NY County 2007).The three (3) non-payment proceedings commenced within two (2) calendar years constituted a cause of action for breach of substantial obligation of Respondent’s tenancy based on chronic non-payment. See, Ludor Properties, LLC v. Brooks, 33 Misc 3d 139(A) (App Term 1st Dept 2011). Therefore, a cause of action against Respondent, such as the one pled in this proceeding, accrued in 2009 based on the non-payment proceeding in 2008 and the two (2) from 2009. Consequently, considering this proceeding was not commenced until approximately mid-August 2018, more than eight years (8) after this same cause of action accrued based on the 2008 and 2009 non-payment proceedings, the statute of limitations bars the consideration of those three (3) non-payment proceeding as a basis for this proceeding.That leaves the 2012 holdover proceeding for chronic non-payment of rent and the 2017 non-payment proceeding as the bases of this proceeding. Respondent has raised an argument, in her reply papers on this motion, that based on res judicata the 2012 holdover proceeding should also be barred from consideration in this case because that proceeding was discontinued after she complied with the terms of a probationary period agreed upon by the parties.3 Petitioner argues this res judicata argument should not be considered because it was raised for the first time in her reply papers.Petitioner may be barred by res judicata from citing to the 2012 chronic non-payment holdover proceeding, which was fully litigated and discontinued, as a basis for this proceeding unless it reserved the right to do so in the stipulation or order ending the proceeding.4 See, 127th Street Cluster, LP v. Brown, 24 Misc 3d 1203 (Civ. Ct NY County 2009). However, Petitioner is correct that Respondent’s res judicata argument is not properly before the court in this motion in that it was not asserted as a ground for dismissal until Respondent’s reply. See, Small v. City of New York, 160 AD3d 471 (1st Dept 2018); Ritt v. Lenox Hill Hosp., 182 AD2d 560 (1st Dept 1992). Also, Petitioner is correct that the mere assertion by Respondent that she raised issues in the earlier cases related to the need for repairs in the apartment does not warrant the dismissal of this proceeding for failure to state a cause of action. The extent to which the alleged conditions in the apartment were a bona fide reason why rent was withheld, leading to the earlier proceedings, is an issue for trial. Zevrone Realty Corp. v. Gumaneh, 51 Misc 3d 142(A) (App Term 1st Dept 2016); GIT LEB, LLC v. Golphin, 51 Misc 3d 144(A) (App Term 2d, 11th & 13th Jud Dist 2016).Nevertheless, even setting aside Respondent’s res judicata and breach of warranty of habitability arguments for purposes of this motion, the remaining two proceedings, commenced approximately five (5) years apart-the 2012 holdover proceeding and the 2017 non-payment proceeding-are insufficient to serve as the basis for this chronic non-payment proceeding particularly considering no allegation has been made of Petitioner resorting to other legal processes to collect the rent. C.f., Greene v. Stone, 160 AD2d 367 (1st Dept 1990) (landlord commenced three non-payment proceedings against tenant over three years but also was compelled to serve legal process twenty-one times during an overlapping fifty-three-month period).For these reasons, this proceeding is dismissed, without prejudice to the extent stated above, based on Petitioner’s failure to state a cause of action.This constitutes the decision and order of the court.Dated: January 25, 2019Bronx, New York
