Recitation, as required by CPLR 2219(A), of the papers considered in review of this motion of respondent’s to dismiss the petition:Papers NumberedNotice of Motion, affidavit, and exhibits annexed 1Memorandum of Law in support of motion 2Affirmation in Opposition and exhibits annexed 3Reply Affirmation 4DECISION/ORDER Upon the foregoing cited papers, the decision and order on this motion is as follows:BACKGROUND AND PROCEDURAL HISTORYPetitioner commenced this proceeding in May 2018 to recover possession of apartment 4C located at 1022 Rev. J. Polite Avenue, Bronx, New York. The premises are subject to a regulatory agreement between NYC Department of Housing Preservation and Development and petitioner which is managed and operated by Community Access, Inc. Community Access, Inc. is a non-profit organization that assists New Yorkers living with psychiatric disabilities make the transition from shelters and institutions to independent living by providing supportive housing, job training, employment services, and advocacy. Respondent, who is a participant in the supportive housing program, is 65 years old and has resided in the subject apartment for nine years. Petitioner seeks possession on the ground that respondent is violating a substantial obligation of her tenancy and creating a nuisance by chronically and consistently failing to pay rent in a timely fashion or failing to pay rent necessitating numerous dispossess proceedings in a relatively short period of time.Petitioner served a notice to terminate respondent’s tenancy pursuant to Rent Stabilization Code §§2524.3(a) and 2524.3(b). The notice of termination alleges that respondent has been chronically late with the nonpayment of rent since her tenancy began in July 2010 and refers to four nonpayment proceedings commenced against respondent between 2012 and 2017. The notice of termination incorporated into the Petition provides:Since May 2013, you have maintained a zero rent balance at the end of the month twice, once in August 2014 and once in January 2017 (see attached rent ledger May 2013 through March 2018).The continuous filing of non-payment actions include:1) Year 2012 (L & T Index #3010312) A three day rent demand was served in May 2012 and a notice of petition and petition were served June 2012. You failed to answer the nonpayment proceeding, and the landlord submitted for a default warrant. 2) Year 2013-2014 (L & T Index #71725/13) A three day rent demand was served in November 2013, and a notice of petition and petition were served in December 2013. The first appearance was January 2, 2014, where a stipulation of settlement was made without repair issues. The rent arrears were not paid. You moved by order to show cause, and a second stipulation was entered into on February 27, 2014 without repair issues. You again moved by order to show cause returnable May 14, 2014, and your motion was denied. You again moved by order to show cause returnable June 23, 2014, and your motion was denied. You again moved by order to show cause returnable on July 10, 2014 and upon an HRA approval, you entered into another stipulation of settlement without repairs. The HRA one-shot was received in August 2014, leaving a zero balance (one HRA rent check was cashed two months later)You then tendered $368 between August 2014 and September 2015). 3) Year 2015-2016 ( L&T Index #76297/15) A three day rent demand was served in September 2015 and November 2015 and a notice of petition and petition were served in December 2015. You defaulted after answering and receiving a return date of January 15, 2016. You moved by order to show cause twice, and restored the proceeding to the calendar on March 29, 2016. On March 26, 2016, you entered into a stipulation of settlement without repairs or warrant. You failed to pay and the proceeding was restored on November 17, 2016. An Article 12 guardian was appointed on December 12, 2016. A HRA one-shot was received in January 2017, leaving a zero balance.You then tendered no monies between February 2017 and July 2017. 4) Year 2017 (L & T index #48139/17) a three day rent demand was served in August 2017 and a notice of petition and petition were served in August 2017. The proceeding was settled by stipulation, including an inspection and repair for a stove burner and kitchen light. A HRA one-shot was received in December 2017, leaving a one month balance.This proceeding first appeared on the court’s calendar on June 4, 2018 at which time respondent appeared pro se and adjourned the proceeding to July 18, 2018. The proceeding was adjourned several times thereafter and on December 13, 2018, respondent retained Bronx Legal Services and the proceeding was adjourned to February 5, 2019 for petitioner to provide petitions, stipulations, settlements, and/or orders from all index numbers alleged in the notice of termination. On February 5, 2019 the proceeding was adjourned to March 21, 2019, for petitioner to provide the requested documents. On March 13, 2019, respondent filed the within motion to dismiss. For the reasons state below, respondent’s motion is granted, and the proceeding is dismissed.DISCUSSION:Respondent moves to dismiss the petition, pursuant to CPLR §§3211(a)(1) and (7) for failure to state a cause of action and/or documentary evidence…During oral argument petitioner withdrew its claim that respondent’s chronic nonpayment of rent was a nuisance which requires a showing of “aggravating circumstances.” Sharp v. Norwood, 89 N.Y.2d 1068 (1997). Petitioner maintains that respondent has breached a substantial obligation of her tenancy by chronically being late with the payment rent.Respondent argues petitioner’s claim of breach of lease based on chronic rent delinquency should be dismissed for failure to state a cause of action as three of the four predicate nonpayment proceedings are insufficient to sustain the chronic rent delinquency holdover. The first predicate proceeding, L& T index #30103/12 was abandoned, not litigated on the merits, nor did petitioner receive a money judgment. The second proceeding, L & T index #71725/13, does not involve the parties or subject premises, and cannot be included as a basis for this proceeding and the fourth proceeding, L& T Index#48139/17 was settled on the first court appearance by both parties and included a defense of warranty of habitability. Therefore, respondent argues, the remaining proceeding, L & T index #76297/15 is insufficient to sustain a chronic rent delinquency holdover.Petitioner, in opposition, argues that it had to commence numerous nonpayment proceedings against the respondent in a short period of time. The number of meritorious nonpayment proceedings previously commenced and litigated by petitioner is sufficient to prove a cause of action for chronic nonpayment of rent. The notice of termination cited four nonpayment cases between 2012 and 2017. The three previous proceedings between 2013 and 2014 lasted from November through August 2014, September 2015 through January 2017, and then August 2017 through December 2017, which is thirty two of the fifty months. Petitioner argues that the court may look at many factors including breaches that did not comprise a nonpayment proceeding and annexs a rent ledger from 2013 through 2018. According to petitioner, the rent ledger shows that the respondent tenant paid rent three times in 2014, HRA paid in August and October 2014. The respondent tenant paid rent three times in 2015, paid September 2017 and January 2017, and HRA paid once in 2016. Respondent paid rent in November 2017, HRA paid in 2017, and in 2018 respondent only paid in April. The rent history, petitioner argues, shows sufficient documentary proof of a breach of lease to pay rent in a timely fashion.In further opposition to the motion to dismiss, petitioner argues the appropriate test in determining the adequacy of a termination notice is “one of reasonableness in view of all the attendant circumstances,” and whether the notice sets forth sufficient facts to allege continuous and ongoing failure to pay rent in a timely manner. In this case, petitioner argues, respondent was served an adequate notice which specifies the allegations of continuous and ongoing failure to pay rent in a timely manner, resulting in numerous proceedings in a short period of time. Petitioner argues that its mistake with the 2013-2014 nonpayment proceeding, L & T Index Number 71275/13 stated as 71725/13, is a harmless error that does not prejudice respondent or her ability to raise defenses as the respondent was aware of the previous proceeding.A party may move to dismiss pursuant to CPLR §3211 (a)(7) for failure to state a cause of action. On a motion to dismiss the court must “afford the pleadings a liberal construction, take the allegations of the complaint as true and provide the petitioner the benefit of every possible inference. The motion must be denied if, from the pleadings four corners, factual allegations are discerned which taken together manifest any cause of action cognizable at law. Gorelik v. Mount Sinai Hosp.Ctr., 19 AD3rd 319 (1st Dept. 2005). In evaluating the facial sufficiency of a predicate notice in a holdover proceeding, “the appropriate test is one of reasonableness in view of the attendant circumstances. Hughes v. Lennox Hill Hosp., 226 AD2d 4 (1st Dept. 1996). The notice must “provide the necessary additional information to enable the tenant to frame a defense to meet the tests of reasonableness and due process.” An adequate predicate notice is a condition precedent to maintenance of a holdover proceeding and if insufficient requires dismissal of the proceeding. Carriage Court Inn, Inc. v. Rains, 138 Misc.2d 444 (Civ. Ct. N.Y.Co.1988). The notice of termination in this proceeding alleges respondent breached a substantial obligation of her tenancy by being chronically late with the payment of rent and lists four proceedings commenced against respondent.To prevail in a holdover proceeding alleging breach of a substantial obligation of the tenancy based upon chronic nonpayment of rent under R.S.C.§2524.3(a), the landlord must establish “a history of repeated nonpayment proceedings brought to collect chronically late rental payments in a relatively short period of time. Adam’s Tower Ltd. Partnership v. Richter, 186 Misc.2d 620 (App. Term 1st Dept. 2000). However, the number of nonpayment actions commenced is relevant only in the context of the entire circumstances surrounding the alleged withholding of rent. Greene v. Stone, 160 AD2d 367 (1st Dept. 1990). In a chronic non-payment holdover proceeding “there is no ‘magic number” of prior proceedings required, as each case is sui generis.” Sharp v. Norwood, 89 NY2d 1068 (1997). The commencement of frequent nonpayment proceedings in a short amount of time, due to a tenant’s “long term, unjustified, and persistent failure to pay rent as it became due” meets the requirements in a chronic nonpayment petition. Greene v. Stone, 160 AD2d 367 (1st Dept. 1990). Where there is a valid dispute with the landlord over repairs, the tenant may be justified in having withheld rent preventing the finding of breach of a substantial obligation under the lease. Where “bona fide claims are shown to exist that an apartment is in need of repairs, precipitating the withholding of rent, a holdover petition based upon chronic nonpayment will not lie. Chama Holding Corp., v. Taylor, 37 Misc.70 (App. Term 1st Dep’t 2012). The court can further consider whether the withholding of rent is willful or if the rent delinquency can be explained due to public assistance errors, warranty of habitability claims or other defenses. 601 West Realty LLC v. Chapa, 2003 NY Slip Op 50686(U) (App. Term 1st Dept. 2003). The circumstances and reasons for the tenant’s rent defaults must be considered in determining whether there is adequate proof to sustain a petition for chronic rent delinquency.The issue this court must resolve is whether petitioner has made a sufficient showing that respondent’s conduct constitutes a violation of a substantial obligation of her tenancy. The court has construed the petition liberally, drawn all reasonable inferences in favor of petitioner and considered all the documentary evidence submitted by both sides. Having done so, the court finds that the proceeding must be dismissed. Petitioner argues that they had to bring numerous nonpayment proceeding against the respondent. The notice of termination specifies four proceedings that allegedly have been commenced against respondent in the last six years.The first proceeding, Index No. 30103/12 was never pursued and was abandoned by the petitioner. The proceeding was commenced in June 2012, respondent failed to answer the petition and petitioner requested a default judgment and warrant in July 2012. A warrant of eviction was issued on August 28, 2012. However, petitioner did not pursue the eviction and the proceeding never appeared on the court’s calendar. Therefore, petitioner cannot rely on a proceeding which was not properly commenced, pursued, or discontinued., Chama Holding Corp. v. Taylor, 37 Misc.3rd 70 (App. Term 1st Dept. 2012), and the court will not consider this proceeding.The second proceeding included in the predicate notice and Petition, Index No. 71725/13, does not involve the parties. Petitioner argues that the mistake is a harmless error and respondent should be aware of the correct index number. The court disagrees with petitioner, as a proper predicate notice must set forth sufficient facts to establish the grounds for the landlord to recover possession. In Chinatown Apartments, Inc. v. Chu Cho Lam, 51 NY2d 786 (1980), the court held the predicate notice must set forth the “who, what, when and where,” of the grounds for eviction. A petition must be dismissed if the predicate notice which it is predicated on is inadequate. Here, petitioner seeks to shift the burden to the respondent to locate the correct index number and case history. It is petitioner’s obligation to serve a proper predicate notice. The notice of termination cannot be amended, regardless of the de miniumus nature of the defect. Therefore, the court also will not consider this proceeding. Crotona Park Hous., v. Joseph, 2014 NY Slip Op. 51425 (U).The third nonpayment proceeding, L & T index no. 76297/15, was commenced in December 2015, and the proceeding was adjourned several times. Both parties agree that respondent lives in supportive housing and is mentally disabled. Petitioner in his affirmation in support states that a guardian ad litem was appointed for respondent on December 12, 2016. However, petitioner’s counsel fails to mention that there was a previous guardian ad litem appointed on May 26, 2016 to protect respondent’s interest but was relieved due to her unavailability. The guardian ad litem eventually was able to obtain an approval from the Human Resource Administration to pay the arrears.The fourth nonpayment proceeding, L & T index No. 48139/17 was commenced on August 22, 2017, respondent answered the petition and received an initial court date of September 20, 2017. On September 20, 2017 the parties entered in to a stipulation with a final judgment and warrant. The stipulation also included a claim of warranty of habitability and access was scheduled for petitioner to complete repairs in respondent’s apartment. The proceeding never appeared again on the calendar and was not pursued by petitioner after the initial court date. Where a bona fide claim that an apartment is in need of repairs…a holdover petition based upon chronic nonpayment should not be sustained. Green v. Stone, 160AD2d 367, 368 (1st Dept. 1990). Respondent’s answer to this proceeding did not raise a claim for warranty of habitability nor has respondent submitted an affidavit in support of her motion to dismiss, stating that the withholding of rent was precipitated because repairs were needed in the subject apartment. Chama Holding Corp. v. Taylor, 37 Misc.3rd 70 (App. Term 1st Dep’t 2012).The predicate notice in this proceeding is defective on several grounds as petitioner has failed to show that it has commenced “numerous proceedings” to sustain a cause of action against respondent for a breach of a substantial obligation of her tenancy. For the reasons cited above the first two proceedings, index no. 30103/13 and 71725/13 will not be considered by the court. The remaining two proceedings are insufficient over a six year period to prove that respondent was chronically late with the payment of her rent. Respondent has shown justification and defenses as to her failure to pay rent on time. Both parties agree that respondent is a senior citizen who resides in supportive housing for people with mental disabilities. As part of supportive housing, petitioner provides services to assist tenants make the transition to independent living, including assistance with housing, job training, employment services, and advocacy. Advocacy would include assistance in obtaining arrears or putting in place measures to prevent respondent from falling behind in her rent. In opposition to respondent’s motion, petitioner’s attorney annexes a rent ledger which he argues shows that respondent has been late in paying her rent for several years. This ledger, however, shows that petitioner should have been put on notice that respondent was having difficulty paying her rent timely and making the transition to independent living. Attempting to evict the respondent, a disabled senior citizen, for chronic rent delinquency seems contradictory to the purpose of the program.For the reasons state above, two of the four proceedings alleged in the predicate notice are not being considered by the court and the remaining two proceedings, commenced over a six year period, are insufficient to show respondent has been chronically late with the payment of rent, and breached a substantial obligation of her tenancy. Further, respondent has shown justification and a defense as to why she has fallen behind in the rent as she is a senior citizen who has a mental disability. Accordingly, the predicate notice in this proceeding is defective. As a defective notice cannot be amended or serve as a basis of the instant holdover proceeding, the petition fails to state a cause of action, respondent’s motion to dismiss is granted, and the proceeding is dismissed.This constitutes the decision and order of this court.Dated: May 10, 2019Bronx, New York
