DECISION & ORDER In this holdover proceeding based on violation of a substantial lease obligation, Respondent Sara Ramos moves pursuant to CPLR R. 3211 (a) (7) to dismiss the petition or, alternatively, for leave to interpose a late answer. Petitioner BH 431-433 Wythe Avenue, L.L.C. opposes the motion in its entirety. Background Petitioner commenced this holdover proceeding in March 2019 seeking possession of the rent-stabilized apartment known as “433 Wythe Avenue, Apartment 3-A” in Brooklyn alleging that Respondent breached her lease pursuant to 9 NYCRR §2524.3(a). In its Notice to Cure, dated January 2, 2019, Petitioner asserts that Respondent violated paragraphs 15, 20(1), and 20(6) of the parties’ September 11, 2017 renewal lease by maintaining her apartment in a “filthy, cluttered, and deplorable condition that has created a fire hazard and threatens the health and safety of other tenants.” The cure notice further claims that, during an inspection of the apartment by Petitioner on December 20, 2018, Petitioner observed personal property covering the floors, chairs and countertops and that Respondent was “harbouring approximately sixty (60) turtles, a pool like turtle habitat, four (4) dogs, and two (2) cats as pets.” It further states that Petitioner received a complaint from another tenant that Respondent’s turtles were roaming the common areas of the subject building and also received complaints from other tenants of “noxious odors emanating from [her] apartment” that has rendered Petitioner unable to rent vacant apartments in the building. The cure notice gave Respondent until January 26, 2019 to cure the above alleged violations. In February 2019, Petitioner served a Notice of Termination asserting that Respondent failed to provide access for the landlord to inspect the premises to ensure compliance with the Notice to Cure, failed to remove the turtles from the subject apartment, and failed to correct the odors and vermin. The termination notice added that barking noise were also heard coming from the subject apartment. The instant proceeding ensued. Arguments On her pre-answer motion, Respondent contends that dismissal is warranted because her evidentiary submission has negated the essential facts of Petitioner’s claim beyond substantial question. In support, Respondent relies on the affidavit of Respondent and notarized letters from two other tenants in the subject building, Respondent’s pastor, the president of the New York Turtle and Tortoise Society, and the New York City Office of Veterinary Public Health Services (VPHS). The VPHS letter, also unsworn, states that “no animals were seen or heard outside the premises” after an inspection was performed by VPHS. The balance of Respondent’s dismissal motion posits law that is applicable to nuisance claims brought under a different section of the Rent Stabilization Code. Alternatively, if the motion to dismiss is not granted, Respondent seeks leave of court to serve a late answer. In opposition, Petitioner argues that Respondent fails to meet her burden on this pre-answer motion to dismiss. Petitioner also contends that its cause of action has merit. In support, Petitioner relies on an affidavit by Bayley Claro Resetar, a former tenant whose unit was below Respondent’s, wherein he avers that loud dogs barking, leaks in his ceiling on three separate occasions, and offensive and overwhelming odors emanating from Respondent’s apartment caused him to move out of his apartment prior to the expiration of his lease. Petitioner also relies on an affidavit by Mordechai Boussidan, Petitioner’s managing agent, who states in his affidavit that, following the expiration of the cure period, he observed conditions within Respondent’s apartment including debris and the presence of 60 turtles, 4 dogs, and 2 cats. His affidavit further avers that he received complaints of noxious odors emanating from Respondent’s apartment, emails concerning noise, and complaints of turtles in the hallways of the building. Discussion “In considering a motion to dismiss pursuant to CPLR R. 3211 (a) (7) [based on failure to state a claim], the court should accept the facts as alleged in the [petition] as true, accord [petitioner] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Tirpack v. 125 N. 10, LLC, 130 AD3d 917, 918 [2d Dept 2015] [internal quotations omitted] citing Leon v. Martinez, 84 NY2d 83, 88 [1994]). However, “where evidentiary material is submitted and considered on a motion to dismiss a [petition] pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the [petitioner] has a cause of action, not whether the [petitioner] has stated one, and unless it has been shown that a material fact as claimed by the [petitioner] to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate” (Garcia v. Polsky, Shouldice & Rosen, P.C., 161 AD3d 828, 830 [2d Dept 2018]). But although this Department permits a court to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7), “affidavits submitted by a [respondent] will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that [the petitioner] has no cause of action” (Yu Chen v. Kupoint (USA) Corp., 160 AD3d 787, 788-89 [2d Dept 2018] citing Miglino v. Bally Total Fitness of Greater New York, Inc., 20 NY3d 342, 351 [2013]). In other words, and although the standard of review shifts from whether the petitioner has a cause of action, not whether the petitioner has stated one, a petitioner need not be “penalized for failure to make an evidentiary showing in support of a [petition] that states a claim on its face” where the submission in support of the motion fails to conclusively establish the absence of a claim (see Clarke v. Laidlaw Tr., Inc., 125 AD3d 920, 922 [2d Dept 2015] quoting Rovello v. Orofino Realty Co., 40 NY2d 633, 636 [1976]). Here, the only admissible evidence submitted by Respondent is her affidavit claiming that the cure notice exaggerates the apartment’s conditions. Indeed, Respondent even admits that she currently harbors only 15 turtles in her unit. These self-serving statements are insufficient to warrant dismissal without demonstrating how harboring this number of animals does not constitute a violation of her lease obligations as a matter of law. As such, Respondent fails to conclusively establish that Petitioner has no cause of action for violation of a substantial obligation of the 2017 lease. The motion’s remaining submission comprised of notarized statements are not appropriate for consideration by this Court because they do not qualify as affidavits; namely, they do not swear or affirm that the facts stated therein are true under penalty of perjury (see People v. Becker, 20 NY 354, 355 [1859]). Assuming arguendo such submissions were admissible, neither the statement by one building resident, Ella Parrea, nor the inspection report from VPHS are dispositive of the factual allegations set forth in the predicate notices. And the letter submitted by another tenant, Manuel Gomez, which questions Petitioner’s motives for commencing this proceeding, actually acknowledges the existence of a “habitat” but otherwise fails to address the merits of the underlying claims. As noted above, Petitioner is not required to submit evidentiary material in opposition to the instant motion in view of Respondent’s failure to conclusively establish the absence of a cause of action (see Clarke v. Laidlaw Tr., Inc., 125 AD3d 920, 922 [2d Dept 2015]). Yet Petitioner nevertheless corroborates its allegation of the conditions and animals in the subject apartment by way of the Boussidan and Resetar affidavits annexed to its opposition. Namely, Resetar avers in her affidavit that the water permeating into his apartment from Respondent’s unit caused him to move out before the expiration of his lease. And Boussidan in his affidavit essentially claims that Respondent did not timely remedy the conditions pursuant to the Notice to Cure. This Court also notes that the instant holdover proceeding is brought under 9 NYCRR §2524.3(a) for violation of a substantial obligation of the tenancy, not under 9 NYCRR §2524.3(b) for committing or permitting a nuisance. Thus, there is no merit to Respondent’s argument that Petitioner cannot maintain a cause of action based on nuisance because the predicate notice only alleges a single instance of some of the above conduct. A petitioner need only demonstrate that the predicate notice is “reasonable in view of the attendant circumstances” (see 323 3rd St. LLC v. Ortiz, 13 Misc 3d 141(A) [App Term, 2d Dept 2006] citing Hughes v. Lenox Hill Hosp., 226 AD2d 4, 18 [1st Dept 1996] lv. denied, 90 NY2d 829 [1997]). As this Court has previously held, when determining if a termination notice has met this standard, courts have considered the following: (1) whether the termination notice, in conjunction with the notice to cure (if any), adequately apprised the tenant as to the grounds upon which it is based, thus permitting tenant to prepare a legal defense; (2) the likelihood that petitioner could have ascertained in good faith that a cure was not timely effectuated; (3) whether the facts underlying the termination grounds are exclusively within either party’s knowledge; and (4) the liberality in granting discovery for the grounds upon which the termination of the tenancy is based (see 1123 Realty LLC v. Treanor, 62 Misc 3d 326, 333 [Civ Ct 2018]). Here, both the Notice to Cure and Notice of Termination specifically apprise Respondent of the conditions alleged, sufficiently allow her to prepare a defense, and grant her an adequate amount of time to cure such that the termination notice cannot be said to be made in bad faith. Lastly, pursuant to CPLR §3012(d), where a party can show a reasonable excuse for the delay or default, the court may extend the time to plead or compel the acceptance of an untimely pleading by such terms as may be just. The court has discretion to grant a motion for an extension of time to file and serve an answer in the absence of prejudice to the opposing party, where a delay was neither wilful nor lengthy, where the answer contains potentially meritorious defenses, and because there is a strong public policy favoring resolution of the cases on their merits (Santos v. City of New York, 269 AD2d 585 [2d Dept. 2000]). Here, there was no wilful or lengthy delay in Respondent’s request to file and serve a later answer. Counsel for Respondent first appeared in this matter in June 2019, and the ensuing motion was filed in July 2019. Respondent also raises potentially meritorious defenses in her answer. As public policy favors the resolution of this case on its merits, however, that branch of Respondent’s motion for leave to serve a late answer is granted without opposition. Accordingly, it is Ordered that the part of Respondent’s motion to seeking leave to file a late answer is granted, and the Answer attached as Exhibit B to Respondent’s moving papers is hereby deemed filed and served; and it is further Ordered that the motion is otherwise denied; and it is further Ordered that the parties appear in this proceeding on December 20, 2019 in Part E at 9:30 A.M. for settlement or trial. Dated: November 26, 2019
