Recitation, as required by CPLR 2219(a), of the papers considered in the review of respondent’s motion to dismiss, or in the alternative, leave to file an answer, and petitioner’s cross-motion for use and occupancy Papers Numbered Notice of motion & Affidavits 1 Notice of cross-motion and Affidavits 2 Answering Affidavits 3 Replying Affidavits Exhibits Other DECISION AND ORDER Upon the foregoing cited papers, the Decision and Order on this Motion is as follows: After the expiration, on April 10, 2019, of a Seven (7) day Notice to Terminate dated March 19, 2019 (the “Notice of Termination”) served subsequent to the expiration, on March 15, 2019 of a Ten (10) Day Notice to Cure dated February 25, 2019 (the “Notice to Cure”), Petitioner commenced this summary proceeding seeking possession of apartment D5 (the “Apartment”), a rent stabilized apartment, in the building located at 6301 23rd Avenue, in Brooklyn (the “Building”). The Notice to Cure alleges that Respondent was in material non-compliance with the Rent Stabilization Laws and in violation of Paragraphs 9A, 10, and 11 of Respondent’s original lease dated April 1, 1985 because, on January 28, 2019, when Petitioner’s agent went to the Apartment, the agent observed that the Apartment was cluttered and that garbage, food, clothes, and furniture took over most of the livable space. Cockroaches and other bugs, as well as excessive foul odors, emanated into the public hallway and surrounding apartments. The Notice of Termination alleges that Respondent failed to comply with the Notice to Cure, and as a result, Respondent’s tenancy was terminated on April 10, 2019. The proceeding first appeared on the court’s calendar on May 7, 2019 and was adjourned on several occasions. On July 5, 2019, Respondent made the instant motion for dismissal pursuant to Civil Practice Law and Rules (“CPLR”) 3211(a) on the grounds that the Court lacks jurisdiction and/or Petitioner fails to set a cause of action, and Petitioner cross-moved for an order directing the payment of use and occupancy. Here, Respondent argues that dismissal is appropriate based on two grounds. First, Respondent argues that proceeding should be dismissed because the Notice of Termination failed to state with particularity how Petitioner believes that Respondent failed to cure the alleged breach. Second, the proceeding should be dismissed because the Notice to Cure is flawed in that it fails to apprise Respondent of provisions of the lease that Respondent allegedly breached. In response, Petitioner asserts that the predicate notices are sufficient, that the Notice to Cure refers to the lease that Petitioner has in its possession, and that Petitioner does not have a copy of the lease that Respondent annexed. Petitioner argues that, at any rate, Respondent has not submitted any proof that the conditions alleged in the Notice to Cure do not exist in the Apartment. On a motion to dismiss, pursuant to CPLR 3211, the Court the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory (Leon v. Martinez, 84 NY2d 83 [1994]; Siracusa v. Sager, 105 AD3d 937 [2d Dept 2013]); Breytman v. Olinville Realty LLC, 54 AD3d 703 [2d Dept 2008]). It has been held that in reviewing the sufficiency of a notice of termination, a predicate notice must be reasonable under the attendant circumstances. (Hughes v. Lenox Hill Hospital, 226 AD2d 4, 17 [1st Dept 1996]); see Fanny Grunberg & Assoc. v. Hyatt, 193 Misc 2d 797 [App Term, 1st Dept 2002]); 323 3rd St. LLC v. Ortiz, 13 Misc 3d 141(A) [App Term 2d & 11th Jud Dists 2006]). A notice is sufficient when its “fact-specific allegations, if proven, are sufficient to establish that tenant” (Id.) is engaging in the proscribed conduct. It has been held that “[t]ermination notices ‘must be clear, unambiguous and unequivocal in order to serve as the catalyst which terminates a leasehold’.” (SAAB Enterprises, Inc. v. Bell, 198 AD2d 342, 343 [2d Dept 1993] [citations omitted]). Service of a proper predicate notice is a condition precedent, and a deficient predicate notice is not amendable and requires dismissal (Chinatown Apartments Inc. v. Chu Cho Lam, 51 NY2d 786, 788 [1980]). Here, the Notice of Termination was dated four (4) days after the expiration of the Notice to Cure and it merely states that Respondent’s tenancy is terminated because Respondent has “failed to comply with the Ten (10) Day Notice to Cure dated February 25, 2019.” The Notice of Termination does not disclose either the source or sources of information or the basis of the information that the breach continued after the expiration of the Notice to Cure. The Notice of Termination does not state how or when Petitioner learned that the alleged conditions in the Apartment still exist. While the Notice of Termination states a conclusion, it fails to state any facts that support that conclusion. It is well settled that the absence of any factual support for the assertion of non-compliance is a fatal flaw (See 31-67 Astoria Corp. v. Landaira, 54 Misc3d 131 [A] [App Term 2d, 11th & 13th Jud Dists 2017]). In Petitioner’s affidavit to oppose Respondent’s motion, there are facts listed regarding what Petitioner did to ascertain whether Respondent cured the alleged breach, however, none of these details are listed in the Notice of Termination. As the Notice of Termination fails to assert any factual allegations to support the conclusion that the conditions addressed in the Notice to Cure went uncorrected after its expiration, the Notice of Termination is insufficient. The Court need not address the remaining ground for dismissal. Based on the foregoing, Respondent’s motion to dismiss is granted. This proceeding is dismissed. Petitioner’s cross-motion is denied as moot. This is the decision and order of the court. Dated: February 25, 2020
