DECISION/ORDER Petitioner commenced this holdover proceeding on April 26, 2016 after serving respondent, Sherelle McCrae, with a Thirty Day Notice of Termination alleging that respondent violated the terms of her lease. Petitioner alleged that respondent’s guest, Louis Marsh, was arrested in respondent’s apartment on February 3, 2016 after selling marijuana to an undercover police officer during an under-cover operation, in violation of respondent’s lease and the Crime Free Lease Addendum respondent signed as part of her lease. Respondent appeared by counsel and interposed an answer dated June 15, 2016 with the following affirmative defenses: petition fails to state a cause of action; neither respondent nor anyone else engaged in illegal activity within the subject premises; petitioner collected rental payments during the window period; petitioner failed to serve respondent with a notice prior to terminating respondent’s tenancy. Respondent also asserted a counterclaim for attorney’s fees.At trial, petitioner’s witness, Sergeant Jason Nino, testified that he is employed as a Sergeant in the 115th Police Precinct, and his responsibilities include covering patrol and supervising the police officers who respond to 911 calls. Prior to his current position, from 2009 until 2016, Sergeant Nino was assigned to the Narcotics Division in North Brooklyn. Sergeant Nino testified the subject building is located in the 75th Precinct which is part of the area within Brooklyn North. Sergeant Nino stated that he effectuated hundreds of arrests during this period of time.Sergeant Nino testified that on or about December 1, 2015, he was assigned to the area in which the subject building is located as part of an undercover narcotics police operation. During this operation, an undercover police officer purchased a green, leafy substance from Louis Marsh. Sergeant Nino testified that following the purchase, he and the undercover officers conducted a field test and the substance tested positive for marijuana. The police officers attempted to arrest Mr. Marsh on the scene. However, they were unsuccessful because Mr. Marsh ran into the subject building, and they were unable to ascertain which apartment he ran into.Sergeant Nino testified that on February 3, 2016, his team was stationed in the area around the subject apartment building for a narcotics operation. During that time, Sergeant Nino recalled that the undercover informant, who previously purchased the marijuana from Mr. Marsh in December 2015, recognized Mr. Marsh and he was arrested. Sergeant Nino testified that after his arrest, Mr. Marsh was placed inside of a police transportation vehicle and transferred to the 75th precinct. Sergeant Nino testified that upon his arrival at the precinct, Mr. Marsh was processed, and he was asked for his pedigree information. Sergeant Nino stated that he did not recall the address that Mr. Marsh gave during processing. Sergeant Nino also stated that while marijuana is not a controlled substance, the sale of marijuana constitutes a criminal offense.On cross examination, when questioned about his shield number, Sergeant Nino testified that his former shield number at the time of the arrest was #2790, and this number was changed to #4448 later in October 2016 when he became a Sergeant at the 115th Police Precinct. Sergeant Nino testified that he was assigned to the Narcotics Division since 2009, and he has been employed by the Police Department since 2005. Sergeant Nino testified that the former spelling of his first name was “Yeison”, which is pronounced “Jason” and he changed the spelling of his first name. Sergeant Nino also stated that as part of his employment, he has testified in court several times, and he acknowledged that the arrest of Mr. Marsh took place more than a year ago.Sergeant Nino testified that he did not recall the number of arrests he made on February 3, 2016, but he knows it was more than one. Sergeant Nino acknowledged that while he was not aware of the number, the information regarding the number of arrests made by a Police Officer is stored in the Police Department computer. Further, Sergeant Nino stated that he does not have a log book of his arrests. Sergeant Nino stated that he keeps a memo book to track daily activities, but not arrests. Sergeant Nino testified that when an arrest is made, pedigree information is obtained from the person in custody and property is invoiced, depending on the type of arrest. When questioned as to whether there was a property log kept relating to Mr. Marsh’s arrest, Sergeant Nino testified that he did not recall whether there was a property log kept for the February 3, 2016 arrest. Sergeant Nino acknowledged that he was subpoenaed to testify in court, but he did not bring any documents with him relating to the arrest.Sergeant Nino testified that after Mr. Marsh’s arrest, he had no contact with the district attorney and he had no knowledge of what took place after the arrest. Sergeant Nino also testified that he has not testified against Mr. Marsh in any case. Sergeant Nino testified that he is familiar with the Adjournment in Contemplation of Dismissal procedure, and he did not see a sealing record on file for Mr. Marsh.Sergeant Nino testified that although there was no arrest warrant at the time of Mr. Marsh’s arrest, an arrest warrant was not needed to effectuate the arrest. Sergeant Nino also stated that he did not have a search warrant for the subject apartment, and he has never met the respondent or visited respondent’s apartment. Sergeant Nino testified that he did not recall the address where Mr. Marsh was arrested, but he knew that it was approximately half a block away from the subject building. Sergeant Nino also testified that Mr. Marsh was arrested while he was walking down the street with children. Sergeant Nino stated that he didn’t review any documentation prior to coming to court to testify, and he confirmed that he did not have any paperwork regarding the arrest.On redirect, Sergeant Nino stated that he knows that Grace Towers is made up of multiple buildings, and Louis Marsh’s arrest took place half a block northbound from the subject premises.Petitioner’s witness, Natasha Carter, testified that for the last six months, she has been the property manager of Grace Towers Apartments and she is responsible for maintaining tenant files. Prior to obtaining her current position, she was employed as a property manager at a different property. Ms. Carter stated that Grace Towers is a project-based Section 8 apartment building which is supervised and funded by HUD. Further, Ms. Carter testified that in her position, she is responsible for meeting with the tenants, collecting rent, and assisting tenants with their annual recertification. Ms. Carter testified that based upon respondent’s tenant file, respondent became a tenant in 2006 and Louis Marsh and a minor child were listed on her Tenant Income Certification. Ms. Carter stated that each tenant and household member’s identity must be verified through legal documentation, and his/her information is kept in the tenant file. Ms. Carter testified that the birth certificates of the children were in respondent’s tenant file because they are identifiers for record keeping purposes, and those documents are required by HUD. Ms. Carter also testified that in addition to a tenant’s lease, tenants are also required to sign a Crime Free Lease Addendum which is also kept in her office. Ms. Carter stated that there is a Crime Free Lease Addendum signed by respondent which is part of respondent’s tenant file.Ms. Carter was unavailable on the next court date, and in lieu of cross examination, the parties stipulated that Ms. Carter had no personal knowledge of the criminal allegations as stated in the Notice of Petition and Petition.Respondent moved to dismiss the proceeding on the ground that petitioner failed to prove a prima facie case. Respondent argued that the witnesses, specifically Sergeant Nino, stated that he never entered the subject building or respondent’s apartment, he never met respondent, he had no search warrant for respondent’s apartment, and he had no arrest records or property voucher relating to Mr. Marsh’s arrest. Respondent asserted that, Sergeant Nino acknowledged that no drug transaction took place on the date listed in the predicate notice, and Sergeant Nino admitted that on the date Mr. Marsh was arrested, he did not have any drug paraphernalia on him, which contradicts the statements in both the predicate notice and petition. Respondent argued that there was no testimony or evidence to corroborate the allegations in the predicate notice and the petition should be dismissed.Petitioner opposed the motion, contending that the testimony of both witnesses sufficiently supported the facts as stated in the petition.The court reserved decision on respondent’s motion and the trial continued.Respondent, Sherelle McCrae, testified that she has lived in the subject apartment for 14 years with her two daughters, Lariya Marsh and Loushinena Marsh, who are 10 and 14 years old. Ms. McCrae testified that her 10-year-old attends P.S. 149 and the 14-year-old attends Academy for Young Writers. Ms. McCrae testified that she is currently training to become a Day Care Director. Ms. McCrae stated that Louis Marsh is the father of her children, and he lives on Midwood Street in Brooklyn.On cross examination, respondent testified that Mr. Marsh is her boyfriend and the father of her children. Ms. McCrae stated that she sees Mr. Marsh almost every day, and Mr. Marsh resides at 388 Midwood Street.Petitioner called respondent, Sherelle McCrae, as a rebuttal witness. Ms. McCrae testified that she visits Mr. Marsh’s apartment approximately once per month, and the last visit was approximately one month ago. Ms. McCrae testified that Mr. Marsh lives with his father in Apartment #6A at 388 Midwood Street, and she did not recall whether the apartment was in Mr. Marsh’s name or his father’s name.Ms. McCrae testified that Mr. Marsh visits her apartment approximately twice per week to visit with her and their children, and now that she is in training, he visits her apartment more frequently to assist her. When asked about whether the parties adhere to a visitation schedule, Ms. McCrae testified that there is no set schedule by which Mr. Marsh comes to visit her apartment. Ms. McCrae stated that when Mr. Marsh comes to visit her apartment, he sometimes spends the night at her apartment, which may take place more than once per week. Ms. McCrae testified that she sees Mr. Marsh every day, because they skype and video chat one another, but he only visits her apartment approximately two days per week. Ms. McCrae also stated that she and Mr. Marsh meet outside of both of their apartments approximately once per month.Ms. McCrae testified that Mr. Marsh is currently unemployed, but he previously was employed at Hunter College as a Mail Room Clerk. Prior to that, he used to clean stoves at different businesses. Ms. McCrae maintained that Mr. Marsh does not reside in her apartment with her, and he does not have any of his belongings at her apartment. Ms. McCrae also testified that Mr. Marsh did not visit her apartment on February 3, 2016, and she had no plans to meet with Mr. Marsh that day.According to the Notice of Termination, respondent violated Paragraph 23 (c) of her lease and the Crime Free Lease Addendum, which was included in respondent’s lease, when Louis Marsh, respondent’s guest, was arrested in respondent’s apartment on February 3, 2016 after selling marijuana to an undercover police officer during an under-cover operation. The Notice of Termination cites to the Crime Free Lease Addendum which states, in relevant part:…“Owner and Resident agree as follows: Resident, any members of the resident’s household or a guest or other persons affiliated with the resident:1. Shall not engage in criminal activity, including drug-related criminal activity, on or near the said premises. “Drug related criminal activity: means the illegal manufacture, sale, distribution, use or possession with intent to manufacture, sell, distribute or use an illegal controlled substance.2. Shall not engage in any act intended to facilitate criminal activity.3. Shall not permit the dwelling unit to be used for, or to facilitate criminal activity, regardless of whether the individual engaging in such activity is a member of the household or a guest.4. Shall not engage in the unlawful manufacturing, selling, using, storing, keeping or giving of an illegal or controlled substance, at any locations, whether on or near the dwelling unit premises.6. Violation of the above provisions shall be a material and irreparable violation of the lease and good cause for immediate termination of tenancy.”As a general rule, a predicate notice must be clear, unambiguous and unequivocal, and is not subject to amendment. Singh v. Ramirez, 2008 N.Y. Slip Op. 51680(U) [App. Term, 2nd & 11th]. A holdover proceeding cannot be maintained without a proper predicate notice, and a predicate notice cannot be amended. Id. The facts in the predicate notice must be pleaded with sufficient specificity so as “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 N.Y.S.2d 710 (App. Term 1st Dep’t 2009).The Thirty Day Notice of Termination dated March 1, 2016 states “on February 3, 2016, the New York City Police Department conducted an under-cover operation at the Subject Premises…during said operation, an undercover NYPD officer arrested Louis Marsh after he sold marijuana to the undercover police officer” (emphasis added.) Further, the Notice states that “the above arrest occurred in your apartment.” (emphasis added.) However, the evidence adduced at trial established that the undercover operation occurred on December 1, 2015, and it was on that date that an undercover police officer was reported to have purchased marijuana from Mr. Marsh. Additionally, Sergeant Nino testified that on February 3, 2016, his team was stationed around the subject apartment building for a narcotics operation when they recognized Louis Marsh from the activity that took place in December 2015 and he was arrested. Moreover, Sergeant Nino testified that while he did not recall the address where Mr. Marsh was arrested, he knew that it was approximately half a block away from the subject building, not inside of respondent’s apartment. Sergeant Nino further testified that he did not produce any arrest records to substantiate the location of the arrest or address Mr. Marsh gave at the time of the arrest. Sergeant Nino provided vague testimony regarding the alleged drug transaction in December 2015 and the location of the arrest on February 3, 2016. Also, petitioner provided no documentary evidence to corroborate Sergeant Nino’s testimony regarding Mr. Marsh’s arrest.There is no dispute that Mr. Marsh is, and was, affiliated with respondent’s apartment and was a frequent guest at the subject apartment. According to Sergeant Nino, the alleged sale of marijuana occurred in the surrounding area of the subject premises, and not inside of respondent’s apartment. However, no specific location was provided. Additionally, there was no evidence submitted which established that the sale of marijuana, or any other illegal substance, took place inside of respondent’s apartment as stated in the Notice of Termination. Petitioner’s failure to provide arrest records and the specific location of the arrest make petitioner’s prima facie case incomplete, and petitioner failed to prove by a preponderance of the evidence that respondent violated the terms of her lease or the Crime Free Addendum. Sergeant Nino testified that he neither entered respondent’s apartment in December 2015 or February 2016, nor was Mr. Marsh arrested inside of respondent’s apartment. The Thirty Day Notice of Termination is fatally defective as it wholly misstates the facts and does not provide respondent with an ability to defend against them.Accordingly, the petition is dismissed.This constitutes the decision and order of the court.Dated: Brooklyn, New YorkApril 18, 2019
