Recitation, as required by CPLR §2219(a), of the papers considered in the review of Respondent’s motion to dismiss for failure to state an action, or in the alternative, motion to serve and file an answer: Papers Numbered Notice of Motion & Affirmation/Affidavit/Exhibits Annexed 1 Answering Affirmation/Exhibits Annexed 2 Replying Affirmation/Exhibits Annexed 3 DECISION/ORDER Upon the foregoing cited papers, the decision and order on Respondent’s motion is as follows: PROCEDURAL HISTORY The immediate holdover proceeding based on a 30-day “Notice Terminating Monthly Tenancy” was commenced by Notice of Petition and Petition filed on February 5, 2019. At the initial court date on February 27, 2019, the proceeding was adjourned to April 9, 2019 for Respondent, Garth Grindley, to retain counsel, Queens Legal Services, via the Universal Access program. Prior to the April 9, 2019 court date, Respondent, through counsel, filed a motion to dismiss or, in the alternative, to serve and file an answer. After two adjournments for opposition and reply, the Court heard argument on the motion on June 7, 2019 and reserved decision. RESPONDENT’S MOTION Respondent’s motion seeks dismissal pursuant to CPLR §3211(a)(7) insofar as Petitioner allegedly included an improper description of the relationship between Petitioner and Respondent in the predicate “Notice Terminating Monthly Tenancy.” Specifically, Respondent argues that Respondent never had a landlord-tenant relationship with Petitioner. Petitioner opposes the motion to dismiss, arguing that it has a landlord-tenant with Respondent insofar as Respondent is listed in its contract of sale with the former owner and because the former owner signed a letter addressed to Respondent at closing that was intended to put Respondent on notice that Petitioner had been assigned all responsibilities and obligations of the prior owner. ANALYSIS RPAPL §711(1) permits a special proceeding to be maintained when “[t]he tenant continues in possession of any portion of the premises after the expiration of his term, without permission of the landlord or, in a case where a new lessee is entitled to possession, without permission of the new lessee.” Here, Petitioner served a 30-day notice (“Notice Terminating Monthly Tenancy”) acknowledging that Respondents have a monthly tenancy. The notice also alleges that the “landlord/owner” is electing to terminate the tenancy. The notice is signed by Autrinand Sharma, identified as “LANDLORD.” In the Petition, however, Petitioner (A&J Estates Inc.) is identified as “owner” of the subject premises. The Petition refers to Autrinand Sharma as “PRESIDENT OF PETITIONER CORPORATION.” There is no allegation in the body of the Petition as to the relationship between Petitioner and Respondents. Contrary to Respondent’s counsel’s argument in the motion to dismiss, Siegel v. Kentucky Fried Chicken of Long Island, Inc., 108 A.D.2d 218 (2d Dep’t 1985), aff’d 67 N.Y.2d 792 (1986), does not require dismissal of this proceeding. As the Court of Appeals held in affirming the Appellate Division, Second Department in Siegel, the notices of default therein were defective specifically because the lease between the parties required service of the notices by the “landlord” and the notices at issue, from an attorney with whom the tenant had never dealt, were not authenticated or accompanied by proof to bind the landlord. Siegel, 67 N.Y.2d at 793. Subsequent to Siegel, the Appellate Division, Second Department has reiterated the narrowness of its holding. In Matter of QPII-143-45 Sanford Ave., LLC v. Spinner, 108 A.D.3d 558, 559 (2d Dep’t 2013), the Appellate Division specifically held that “Siegel is limited to the ‘factual peculiarities’ of the lease in that case.” Since there is no allegation by any party herein that a lease limiting the issuance of notices of termination exists, the Court does not find Siegel to be applicable to the instant facts. However, the Court finds that the “Notice Terminating Monthly Tenancy” is defective insofar as it improperly describes the relationship between the parties. A cause of action only exists under RPAPL §711(1) when a “landlord” or “new lessee” is entitled to possession. There is no demonstration by Petitioner that Autrinand Sharma, who signed the predicate notice in his individual capacity, was at any time either the landlord or lessee of the subject premises. The contract of sale, letter of attornment, and closing statement attached to Petitioner’s opposition papers all refer only to A&J Estates Inc. as the purchaser. To the extent that Mr. Sharma is alleged to be the President of A&J Estates Inc. in the Petition, this is irrelevant in the context of the notice, which does not indicate that Mr. Sharma is signing on behalf of the corporation in any capacity. Moreover, Petitioner A&J Estates Inc. is not even alleged to be the “landlord” in the Petition, only the “owner.” There is unequivocally no cause of action for an “owner” under RPAPL §711(1). Since Petitioner’s predicate notice contains an inaccurate description of the relationship between the parties (which is further compounded by a lack of any description of the relationship between the parties in the body of the Petition), it is defective as a matter of law. See RPAPL §741(2); see also SAAB Enters. v. Bell, 198 A.D.2d 342, 343 (2d Dep’t 1993) (“Termination notices ‘must be clear, unambiguous and unequivocal in order to serve as the catalyst which terminates a leasehold.’”) (citing Ellivkroy Realty Corp. v. HDP 86 Sponsor Corp., 162 A.D.2d 238 (1st Dep’t 1990)); Christ Pentacostal Temple Inc. v. Copeland, 59 Misc.3d 1215(A), 100 N.Y.S.3d 609 (Civ. Ct. Queens County 2018); Robles v. Margaritis, 52 Misc.3d 523, 29 N.Y.S.3d 780 (Dist. Ct. Nassau County 2016). As Petitioner is “‘bound by the notice served,’” it may not be amended. Singh v. Ramirez, 20 Misc.3d 142(A), 2008 NY Slip Op 51680(U) (App. Term 2d & 11th Jud. Dists. 2008) (citing One East 8th St. Corp. v. Third Brevoort Corp., 38 A.D.2d 524 (1st Dep’t 1971)). See also Chinatown Apts. v. Chu Cho Lam, 51 N.Y.2d 786 (1980). CONCLUSION Accordingly, for the foregoing reasons, Respondent’s motion to dismiss pursuant to CPLR §3211(a)(7) is granted and the immediate holdover proceeding is dismissed, without prejudice. Respondent’s motion, made in the alternative, to serve and file an answer is denied as moot. THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. Dated: August 7, 2019 Queens, New York
