Recitation, as required by CPLR 52219(a), of the Papers considered in the review, Motion: Papers Numbered Motion & Affirm 1 Affirm in Opp. 2 Reply 3 DECISION/ORDER Respondent moves herein for: (A) Dismissal of this proceeding pursuant to CPLR §3212(a)(7) on the grounds that Petitioner failed to state a cause of action as Petitioner failed to identify any lease provision that Respondent allegedly violated, the notice to cure contained conflicting addresses and the notice of termination failed to mention particular and specific facts supporting the nuisance allegations beyond the cure period and /or in the alternative; (B) For an extension of time to serve and file an answer pursuant to CPLR §3211(f). Petitioner opposes the motion on the basis that: (1) Petitioner was not required to cite the specific provision of the lease Respondent allegedly violated as Petitioner brought the proceeding pursuant to Rent Stabilization Code §2524.3(a) & (b);(2) The mistake in the notice to cure does not deprive Respondent of the ability to prepare a defense and; (3) The termination notice is proper and does state instances of nuisance that occurred after the cure period expired. Prior to commencing this nuisance holdover proceeding Petitioner served a notice to cure dated January 24, 2020 and a notice of termination dated February 10, 2020. These notices constituted the predicate notices for the above-captioned holdover proceeding, which was later commenced by the service and filing of the notice of petition and petition on or about March 30, 2020. While the notice to cure is correctly addressed to the respondent at the subject premises, “34-12 113th Street, apt 4E, Corona, NY 11368″, the body of the notice to cure identifies the subject premises as “Apt. 8, 644 President Street, Brooklyn, New York,” an incorrect address in another borough. Respondent argues the two conflicting addresses constitute a fundamental inconsistency that cannot be amended and must result in dismissal of this proceeding in its entirety. Petitioner argues that as this proceeding is commenced under both RSC §§2542.3(a) and (b), no notice to cure or an opportunity to cure is required before commencing a proceeding and since Respondents arguments for dismissal are related to the notice to cure, the motion is moot. Petitioner additionally argues that the mistake in the notice to cure does not deprive the respondent of the ability to prepare a defense. The Court disagrees with Petitioner’s arguments. In the instant proceeding, both the notice to cure and the notice of termination expressly mention that respondent is violating the lease agreement. Breach of a substantial obligation of the tenancy requires a proper notice to cure pursuant to RSC§2524.3(a) and a proper cure period. Consequently, when commencing this proceeding, Petitioner considered the alleged violation curable in bringing it as a violation of the terms of the lease or even as a violation of a substantial obligation of the lease. Accordingly, suggesting that a substantial error in one of the predicate notices is inconsequential because the notice to cure was not required is unreasonable and without merit. As Petitioner found it necessary to send a notice to cure prior to terminating Respondent’s tenancy, Petitioner is bound by it. See Singh v. Ramierez, 20 Misc. 3d 142 [A], 2008 NY Slip Op 51680 (U) AT, 2nd Dept. 2d & 11th Jud. Districts 2008]) The notice to cure specifically states that Respondent is violating the lease agreement “for the premises described as Apt. 8, 644 President Street, Brooklyn, NY (hereinafter premises)”. It also specifically mentions that Respondent is “violating a substantial obligation of the tenancy and committing or permitting a nuisance in the premises i.e. Apt 8, 644 President Street, Brooklyn.” This is not the premises in which Respondent resides nor is it the premises which is the subject of this case. In view of the attendant circumstances, a notice to cure that contains two conflicting addresses and improperly states that Respondents were required to cure alleged nuisance behavior in an apartment in Brooklyn when she lives in Queens is plainly unreasonable and improper. It impedes Respondent’s ability to prepare an adequate defense. Predicate notices are not amendable and therefore, the Court is required to dismiss the proceedings in its entirety. See Chinatown Apartments Inc., v. Chu Cho Lam, 51 N.Y.2d 786 (1980); Bray Realty LLC v. Pilaj, 59 Misc. 3d 130 (A) AT 2nd Dept. 2d &11th Jud. Districts 2018. The Court need not address the other arguments raised by Respondent as the failure to serve a proper notice to cure is fatal to the proceeding. Accordingly, Respondent’s motion is granted. This proceeding is dismissed without prejudice. Respondent shall serve a copy of this order with notice of entry upon Petitioner within ten days. This constitutes the decision and order of the Court. Dated: October 1, 2021
