Recitation, as required by CPLR §2219(a), of the papers considered in the review of respondent’s motion for an order to dismiss pursuant to CPLR §3211(a)(7) or in the alternative for leave to interpose an answer and petitioner’s motion for an order granting summary judgment pursuant to CPLR 3211 and a money judgment for all rent and use and occupancy and setting the matter down for a hearing on legal fees. Papers Numbered Notice of Motion and Affidavits Annexed 1, 2 Order to Show Cause and Affidavits Annexed Answering Affidavits Replying Affidavits 3, 4 Exhibits Other DECISION/ORDER Upon the foregoing papers, the Decision/Order on these motions is as follows: Background Petitioner commenced the instant holdover proceeding by notice of petition and petition to recover possession of apartment 13 located at 40 Horatio Street, New York, New York. Prior to commencement petitioner served a Notice of Termination alleging that respondent violated substantial obligations of his tenancy. Respondent filed a combined notice of appearance and motion to dismiss for failure to state a cause of action. Petitioner then filed its own motion seeking summary judgment, a money judgment for all arrears and alegal fees hearing. Discussion As a preliminary matter, the Court declines to treat respondent’s motion as one for summary judgment as petitioner requests because respondent has not charted a summary judgment course by laying bare all his proof. CPLR 3211(c); Wiesen v. New York Univ., 304 AD2d 459 [1st Dept 2003]. On a motion to dismiss pursuant to CPLR 3211, the Court will afford the pleading a liberal construction, accept the facts as alleged in the complaint as true and accord the plaintiff the benefit of every possible favorable inference. Morone v. Morone, 50 NY2d 481 [Ct App 1980]. In deciding this type of motion the court’s function is to determine whether the alleged facts fit within any cognizable legal theory. Leon v. Martinez, 84 NY2d 83 [Ct App 1994]. A predicate notice must be legally sufficient to allow the tenant the opportunity to prepare a defense. See, e.g. Brusco v. Miller, 167 Misc2d 55 [1st Dept 1995]. A proper termination notice must “state the ground under section 2524.3 or 2524.4 of [the Rent Stabilization Code] upon which the owner relies for removal or eviction of the tenant, the facts necessary to establish the existence of such ground, and the date when the tenant is required to surrender possession.” RSC §2524.2(b). “[T]he appropriate standard for assessment of the adequacy of the notice is one of reasonableness in view of the attendant circumstances”. Hughes v. Lenox Hill Hosp., 226 AD2d 4 [Ct App 1996]. Respondent argues that the petition should be dismissed because the Notice of Termination fails to state the relevant provisions under the Multiple Dwelling Law (“MDL”) and Administrative Code of the City of New York upon which petitioner relies for this proceeding. In addition, petitioner lacks a cause of action because it failed to serve him with a notice to cure. Petitioner counters that respondent is renting the apartment out on a nightly basis to a series of different people through AirBnB and that the predicate properly sets forth the relevant details. The Notice of Termination here states that respondent’s tenancy was terminated “for the reason that you have violated substantial obligations of your tenancy, and in particular, the Multiple Dwelling Law and the Administrative Code of the City of New York, and the Rent Stabilization Code…§2524.3(b) and §2525.5 and your original lease.” The notice then cites paragraphs 1 and 11 of respondent’s lease which respectively require respondent to use the apartment for living purposes only and comply with all laws and regulations. Immediately thereafter the notice states that “[t]he Multiple Dwelling Law and the Administrative Code of the City of New York prohibit the renal of residential units for less than thirty (30) days unless said units are licensed hotels.” The eleven page notice goes on to list facts regarding the alleged AirBnB rentals including advertisement on the internet, the daily rate charged by respondent, the name and time when the apartment was rented to a specific individual and allegations from the building staff who observed different persons using the apartment for short periods of time. The Notice here is not reasonable in light of the attendant circumstances for several reasons. First as respondent argues, the notice fails to state the relevant provisions and subsection under the MDL and Administrative Code under which petitioner brings this proceeding. While the relevant sections (MDL §4(8)(a) and Admin Code §28-201.3) are alluded to in the notice, they are not cited. Conversely, an irrelevant section of the RSC is cited as a basis for this proceeding. Section 2525.5 of the Rent Stabilization Code pertains to harassment and prohibits an owner or its agent from engaging in conduct which interferes with a tenant’s quiet enjoyment of his or her apartment. The inclusion of this statute in the predicate renders it confusing and would imped respondent’s ability to prepare a defense. Conclusion Based on the foregoing, the branch of respondent’s motion seeking dismissal for failure to state a cause of action is granted. The Court need not reach the other branch of the motion. Petitioner’s motion is denied as moot. This constitutes the decision and order of the Court. Date: July 12, 2019 New York, New York
