Recitation, as required by CPLR §2219(a), of the papers considered in the review of Respondents’ motion to dismiss pursuant to, inter alia, CPLR §3211 for “lack of jurisdiction” and failure to state a cause of action and Petitioner’s cross-motion for discovery and for use and occupancy: Papers Numbered Notice of Motion & Affirmation/Affidavits/Exhibits Annexed 1 Notice of Cross-Motion & Affirmation (in Opposition & Support)/Affidavit/Exhibits Annexed 2 Upon the foregoing cited papers, the decision and order on Respondents’ motion to dismiss and Petitioner’s cross-motion is as follows: PROCEDURAL HISTORY The immediate holdover proceeding brought was commenced by Notice of Petition and Petition dated January 9, 2019. Annexed to the Petition are a “Fifteen (15) Day Notice to Cure” (hereinafter “Notice to Cure”) and “Fifteen (15) Day Notice to Terminate” (hereinafter “Notice of Termination”), which allege that Respondents Jose Orozco and Maria L. Orozco (cooperators of the subject premises, a Mitchell-Lama cooperative apartment) have failed to maintain the subject premises as their primary residence and have sublet without prior written consent of Petitioner, in violation of various statutory provisions and their lease. At the initial court date on January 29, 2019, counsel appeared for Respondents and the proceeding was adjourned to March 12, 2019 for Respondents to file an answer. After adjournments on March 12th and April 10th, Respondents, through counsel, made a motion to dismiss and Petitioner made a cross-motion for discovery and for use and occupancy. The Court heard argument on both the motion to dismiss and the cross-motion on June 4, 2019 and reserved decision. ANALYSIS Respondents’ Motion to Dismiss Pursuant to CPLR §3211(a)(7), “[a] party may move for judgment dismissing one or more causes of action asserted against him on the ground that…the pleading fails to state a cause of action.” Here, Respondents argue that the Notice to Cure and Notice of Termination are “vague, conclusory, inconsistent and fail to support the termination of the [Respondents'] tenancy.” Contrary to what is alleged by Respondent’s attorney in the motion to dismiss and Petitioner’s attorney in the affirmation in opposition, the Rent Stabilization Code (in particular, 9 NYCRR §2524.2(b)) has no applicability in this proceeding, as the subject premises are alleged to be exempt from rent stabilization in the Petition; instead, the proceeding is brought pursuant to Article 4 of the Private Housing Finance Law of the State of New York. The statutory provision governing termination and predicate notices for apartments subject to Article 4 of the Private Housing Finance Law is 9 NYCRR §1727.5-3, which is cited in the Notice to Cure and Notice of Termination. In particular, those notices reference 9 NYCRR §1727-5.3(a)(2), (a)(8), and (a)(12) (in addition to various lease provisions). Subsection (a)(2) concerns termination where the cooperator “violates a substantial agreement, covenant or obligation of the lease, or fails to comply with any substantial provision of the by-laws, subscription agreement or other governing document”; subsection (a)(8) concerns termination where the cooperator “obtained occupancy or continues in occupancy of a dwelling unit in any manner not in conformity with the provisions of this Part, or with any other applicable statute or regulation”; and subsection (a) (12) concerns termination where the cooperator “does not occupy the dwelling unit as his or her primary residence.” 9 NYCRR §1727-5.3. Although Respondents argue that the predicate notices are vague, conclusory, and lack specificity, the Court does not find them to be defective for these reasons. The Notice to Cure includes five allegations, which include: Respondents Jose and Maria L. Orozco do not reside at the subject premises and are believed to be residing at an address in New Jersey, Jose and Maria L. Orozco own a home at the address in New Jersey, Jose Orozco has a telephone number associated with the address in New Jersey, other individuals (the remaining Respondents) are residing in the subject premises without knowledge or consent of Petitioner, and that the date when those individuals moved in rests solely with the Respondents. As allegations supporting nonprimary residence and illegal sublet (insofar as they are alleged in the Notice to Cure), they are not insufficient on their face. See, e.g., Westhampton Cabins & Cabanas Owners Corp. v. Westhampton Bath & Tennis Club Owners Corp., 62 AD3d 987, 988 (2d Dep’t 2009) (Notice to cure sufficient where it “set[s] forth sufficient facts to establish grounds for the tenant’s eviction, and inform the tenant as to how the tenant violated the lease, as well as the conduct required to prevent eviction”); Domen Holding Co. v. Aranovich, 1 NY3d 117 (2003). However, the Court finds that the Notice of Termination is defective insofar as it states that “Jose Orozco and Maria L. Orozco failed to cure in that they are still occupying 205 Boundary Street, Tom [sic] River, NJ 08753.” As the Appellate Term, Second Department held in 31-67 Astoria Corp. v. Landraira, 54 Misc 3d 131(A), 52 N.Y.S.3d 249 (App. Term 2d Dep’t 2017), “a violation removed during the cure period will not support the termination of a lease based on the tenant’s alleged default.” The termination notice at issue in 31-67 Astoria Corp. “was defective because it failed to allege that the defaults specified in the notice to cure, which were curable, had not been cured during the cure period.” Id. See also Sudimac v. Beck, 63 Misc 3d 1208(A), 2019 NY Slip Op 50442(U) (Civ. Ct. Queens County 2019); 2704 Univ. Ave. Realty Corp. v. Thompson, 63 Misc 3d 1222(A), 2019 NY Slip Op 50652(U) (Civ. Ct. Bronx County 2019). Here, the sole allegation that is alleged to not have been cured in the Notice of Termination is “occupancy” by the cooperators of record at another address. This allegation, without more, is insufficient to support a cause of action for any of the statutory grounds (under 9 NYCRR §1727-5.3) cited in the Notice of Termination. To the extent that occupancy is relevant to any of the grounds, it is 9 NYCRR §1727-5.3(a)(12). However, according to the plain language of that provision, it is only applicable when the cooperator is “not occupy[ing] the dwelling unit as his or her primary residence.” (Emphasis added). Therefore, an allegation that the cooperators are occupying a dwelling elsewhere (without any reference to how this relates to their primary residence) is not enough to set forth a cause of action. Finally, although Petitioner states in the Notice to Cure that it “verily believes that your conduct as reflected herein is not curable, and as such, the Landlord may elect to terminate your tenancy in any event,” 9 NYCRR §1727-5.3(b)(1), specifically requires service of a notice to cure when eviction is sought under 9 NYCRR §1727-5.3(a)(12) (as well as under subsection (a)(2), which is also cited in the Notice to Cure).1 Therefore, unlike the nonprimary residence provision of the Rent Stabilization Code (9 NYCRR §2524.4(c)), which does not require service of a notice to cure (and is therefore not subject to cure — see, e.g., 45th St. Assocs. v. Spence, 180 Misc 2d 93, 689 N.Y.S.2d 355 (App. Term 1st Dep’t 1999)), the specific inclusion of the right to a notice to cure when nonprimary residence is alleged with regard to housing governed by Article 4 of the Private Housing Finance Law can lead to no other conclusion than the ground being subject to cure. See, e.g., Raritan Dev. Corp. v. Silva, 91 NY2d 98, 107 (1997) (“‘Where the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used’“) (citing Patrolmen’s Benevolent Assn. v. City of New York, 41 NY2d 205, 208 (1976) (emphasis in original). Accordingly, Petitioner has failed to state a cause of action and its predicate notices may not be amended. See, e.g., Chinatown Apts. v. Chu Cho Lam, 51 NY2d 786 (1980). Respondents’ motion to dismiss is granted and the proceeding is dismissed, without prejudice. Petitioner’s cross-motion for discovery and for use and occupancy is denied as moot. THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. Dated: August 1, 2019 Queens, New York
