Recitation, as required by CPLR §2219(a), of the papers considered in the review of the motion filed by Respondent Katiria Arce:Papers NumberedNotice of Motion, Affirmation, Affidavits and Exhibits annexed 1Notice of Cross Motion, Affirmation and Exhibits annexed 2Replying Affirmations 3Replying Affirmations to Cross Motion 4DECISION/ORDER After oral argument and upon the foregoing cited papers, the decision and order on this motion is as follows:PROCEDURAL HISTORY AND RELIEF SOUGHTPetitioner Wallace 18 LLC, (“Petitioner”), commenced this summary holdover proceeding seeking to evict Katiria Arce, “John Doe” and “Jane Doe” on the basis that Katiria Arce, (“Respondent”), has breached a substantial obligation of her tenancy by unreasonably refusing to provide Petitioner access to complete required repairs in violation of the parties’ lease and Rent Stabilization Code §§2524.3(a), (e). This matter was initially calendared in the resolution part on January 7, 2019 and was adjourned to February 26, 2019 for Respondent to obtain counsel. Respondent obtained counsel through the “Universal Access” program on February 26, and the matter was thereafter adjourned for motion practice.Respondent moves for pre-answer dismissal pursuant to CPLR §3211(a)(7) alleging that Petitioner has failed to state a cause of action. Specifically, Respondent argues that the notice is impermissibly vague by failing to state with specificity facts to support its claim and failing to state facts that would support its allegation that Respondent failed to cure within the designated cure period. Petitioner cross-moves for relief requesting the court strike a portion of Respondent’s affirmative defenses. As a preliminary matter the court notes that Petitioner does not label its notice of cross-motion as opposition to Respondent’s motion, however the court will consider it as such.Petitioner has alleged in its petition that the Respondent is the rent-stabilized tenant of 3035 Wallace Avenue Apt. 3D Bronx, NY 10467.1 Petitioner commenced this action by Ten-Day Notice to Cure, stating in pertinent part:Pursuant to Section 2423.3(a) of the Rent Stabilization Code you are violating a substantial obligation of your tenancy and you are being put on written notice that you must cure such violation in the time period proscribed by law.You are violating a substantial obligation of your tenancy and lease where you have refused to provide access to the landlord to make necessary repairs to your apartment, and where you have made complaints that caused HMC violations to be issued against the landlord. You have failed or refused to provide access to you apartment to the landlord’s workers. The landlord’s workers have been to your apartment on multiple dates, requesting access to your apartment, but you have failed to provide access to your apartment. As a result, the landlord is subject to fines and civil penalties.IN ADDITION PLEASE TAKE NOTICE, that the Tenant of Record has unreasonably refused access to the housing accommodation for the purpose of making necessary repairs contrary to Section 2524.3(e) of the Rent Stabilization Code. That Section provides eviction proceedings may be commenced where:The tenant has unreasonably refused the owner access to the housing accommodation for the purpose of making necessary repairs or improvements as required by law.You have unreasonably refused the owner or its workers access to your apartment to preform required repairs to your apartment.2DISCUSSIONRespondent asserts that Petitioner’s predicate notice is fatal requiring dismissal of this matter in that it is so vague, unparticularized and over-broad that it prevents Respondent from formulating a defense to this case. For the reasons set forth below, this court agrees.On 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 favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. (Leon v. Martinez, 84 NY2d 83, 87 [1994]; Breytman v. Olinville Realty, LLC, 54 AD3d 703, 703-704, 864 NYS2d 70 [2nd Dept 2008]). Thus, “a motion to dismiss made pursuant to CPLR §3211 (a) (7) will fail if, taking all facts alleged as true and according them every possible inference favorable to the plaintiff, the complaint states in some recognizable form any cause of action known to our law.” (Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38 [2nd Dept 2006]; see Leon v. Martinez, 84 NY2d at 87-88).With respect to the sufficiency of a predicate notice, “the appropriate test is one of reasonableness in view of the attendant circumstances.” (Hughes v. Lennox Hill Hosp., 226 AD2d 4, 18, 651 NYS2d 418 [1st Dept 1996]; See also Oxford Towers Co. LLC v. Leites, 41 AD3d 144837 NYS2d 131 [1st Dept 2007]). Moreover, Rent Stabilization Code §2524.2(b) requires that the predicate notice state the facts necessary to establish the existence of the ground upon which the owner relies for the removal of the tenant. (See 69 E.M. LLC v. Mejia, 49 Misc. 3d 152[A], 29 NYS3d 849 [App Term, 1st Dept 2015]; See also Barrett v. Silva, 18 Misc. 3d 126(A) [App Term, 2d & 11th Jud Dist 2007] citing Berkeley Assoc. Co. v. Camlakides, 173 AD2d 193 [1st Dept 1991], aff’d 78 NY2d 1098 [1991]). Standards of specificity are required to “discourage baseless eviction claims founded upon speculation and surmise rather than concrete facts.” (London Terrace Gardens, L.P. v. Heller 40 Misc. 3d 135(A), 975 NYS2d 710 (App Term, 1st Dept 2009). It is well settled that a deficient predicate notice is unamendable and requires dismissal. (Chinatown Apts. v. Chu Cho Lam, 51 NY2d 786, 788 [1980]).Although there is no bright-line rule requiring a predicate notice include dates and times to pass muster, courts have found predicate notices bereft of dates and times defective, especially in cases where dates are readily accessible by Petitioner. (See 1123 Realty LLC v. Treanor, 62 Misc. 3d 326, 335-336, 86 NYS3d 381 [Civ Ct, Kings County 2018] (“Here, the notice of termination is bereft of specific dates and times when access was allegedly sought by petitioner…, the notice of termination nevertheless fails to state whether an inspection appointment was agreed to and, if so, whether respondent failed to provide access on the agreed-upon date. Thus, respondent is entirely unable to frame a defense at trial due to the lack of particularity in either predicate notice.”); Concourse Green Associates, LP v. Patterson, 53 Misc. 3d 1206(A), 2016 NY Slip Op 51451(U) [Civ Ct, Bronx County 2016] (While there is no bright line rule mandating the inclusion of names, dates and specific instances of misconduct in the predicate termination notice, they may be required if the failure to include them would be unreasonable in light of all the attendant circumstances.” [internal citations omitted]); (See 291 Lenox realty Co. v. Babel 19 Misc.3d 1145(A), 867 N.Y.S.2d 21 (Civ. Ct. Kings Co. 2008) (noting that a predicate notice deficient of dates and times was defective where “conduct would be readily susceptible to identification by date and time.”))Here, the allegations are entirely conclusory and do not sufficiently apprise Respondent of the allegations against her to allow her to formulate a defense to this matter. Not only is the notice silent as to any specific dates, it is even devoid of a general time frame in which access was attempted, much less refused. The dates in which Petitioner attempted to gain access to Respondent’s apartment and were allegedly denied entry would be easily accessible to Petitioner prior to commencing this case. Respondent, as well as this court, are left to simply guess as to when the alleged breach took place. The predicate notice thus fails to provide the concrete facts necessary to sustain this cause of action. (See London Terrace Gardens, L.P. 40 Misc.3d 135(A) (App. Term 1st Dept.)) The instant notice is not reasonable under any reading. (See Hughes v. Lennox Hill Hosp., 226 AD2d at 18).CONCLUSIONFor all of the foregoing, it is,So Ordered, Respondent’s motion to dismiss on these grounds is granted and the petition is dismissed. Petitioner’s cross-motion is denied as moot.This constitutes the decision and order of this Court.SO ORDERED,Dated: May 9, 2019Bronx, NY
