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 1Answering Affidavit 2DECISION/ORDER UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS:Petitioner commenced this summary holdover proceeding seeking to recover possession of Apartment #31, a rent-stabilized apartment, located at 2181 Barnes Avenue, Bronx, NY, on the ground that Respondent breached a substantial obligation of his lease and tenancy.Petitioner served upon Respondent a notice to cure dated April 2, 2019, which states the following, in relevant part:You or your visitors are constantly throwing food out the window causing rats and rodents and continually allowing the tub to overflow multiple times a year which has interfered with the comfort and rights of other tenants of 2181 Barnes Avenue, Bronx New York 10462 therefore you are in violation of [sic] Paragraph 17 of your Lease.This notice gave Respondents until April 27, 2018 to cure, and was served on April 10, 2018.The notice to cure was then followed by a notice of termination dated June 5, 2018. The notice provides that Respondent’s tenancy was terminated effective July 10, 2018. The notice states in relevant part:You or your visitors are constantly throwing food out the window causing rats and rodents and continually allowing the tub to overflow multiple times a year which has interfered with the comfort and safety of other tenants of 2181 Barnes Avenue, Bronx, New York, 10462. Said activities have continued after termination of the Notice to Cure therefore you are in violation [sic] Paragraph 17 of your Lease (emphasis added).Respondent Muhammad Khan (“Respondent” herein) appeared by counsel, and now seeks an order dismissing the proceeding pursuant to CPLR §3211 (a) (7), and 9 NYCRR §§2524.2 (b) and 2524.3 (a) based on Respondent’s contention that the allegations in the notice of termination related to the breach of the lease are vague, conclusory, and lack the requisite specificity. Respondent also seeks an order dismissing the proceeding based on his contention that the petition does not meet the requirement of RPAPL §741.In the alternative, Respondent seeks an order granting him leave to conduct discovery pursuant to CPLR §408.In opposition, Petitioner contends that the notices describe ongoing activity which sufficiently states Petitioner’s cause of action. Petitioner also opposes Respondent’s request for discovery on the ground that the section of the lease Respondent seeks was repeated in the predicate notices and otherwise opposes Respondent’s request for discovery relating to the alleged lack of specificity in the pleadings.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” (Leon v. Martinez, 84 NY2d 83, 614 NYS2d 972 [1994] [internal quotation marks and citation omitted]). In “assessing a motion under CPLR 3211 (a) (7)…the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one” (Martinez at 88).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, 433 NYS2d 86 [1980]). “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 the 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]). The Court looks at whether the notice materially misled or confused the tenant or hindered the preparation of his defense (see Leites, supra). The allegations in the notice must not be broad, unparticularized, too generic so as to prevent the Respondent from being able to prepare a defense and must otherwise satisfy the requirement of the Rent Stabilization Code (see 69 E.M. LLC v. Mejia, 49 Misc3d 152 [A], 29 NYS3d 849 [App Term, 1st Dept 2015]; 157 Broadway Assoc. LLC v. Berroa, 2018 NY Slip Op 51942 (U) [App Term, 1st Dept 2018]; MSG Pomp Corporation v. Doe, 185 AD2d 798, 586 NYS2d 965 [1st Dept 1992]). And, 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 (but see Pinehurst Construction Corp. v. Schlesinger, 38 AD3d 474, 833 NYS 2D 428 [1st Dept 2007]; City of New York v. Valera, 216 AD2d 237, 628 NYS2d 695 [1st Dept 1995]). Moreover, as stated by the court in 31-67 Astoria Corp v. Landaira, 54 Misc 3d 131 (A), 52 NYS3d 248 [App Term, 2d, 11th and 13th Jud Dists 2017]), a notice of termination is defective if it fails to allege that the defaults specified in the notice to cure, which are curable, have not been cured.Measured against the test of reasonableness in view of the attendant circumstances, this Court finds that the notice of termination served upon Respondent fails to adequately apprise Respondent of Petitioner’s claims. The notice of termination essentially tracks the language contained in the notice to cure without offering any sufficient additional allegations that following the deadline to cure imposed in the notice the alleged conduct persisted. The notice to cure alleges that Respondent’s actions have caused an infestation at the subject property and the tub overflowing has interfered with the comfort of other tenants in the building. Absent from the notice of termination however, are any claims that since April 28, 2018, the date following the deadline to cure, there have been additional similar incidents, that Respondent has essentially not cured. Without these additional details, it is unclear if the conduct has persisted past the deadline imposed in the notice to cure as Petitioner’s claims. As a result, the notice fails to adequately apprise Respondent of Petitioner’s claims, and deprives Respondent of the meaningful opportunity to challenge these claims.Based on the foregoing, Respondent’s motion seeking an order dismissing the proceeding is granted, and the proceeding is hereby dismissed. Respondent’s request for discovery is denied as moot.This constitutes the decision and order of the Court.Dated: March 25, 2019
