The following papers numbered 1 to 5 were read and considered on the Respondent’s Order to Show Cause pursuant to CPLR §406, CPLR §3211 (a) (1) and CPLR §408 to dismiss the proceeding or in the alternative to grant. Respondent leave to conduct discovery and an order directing Petitioner to comply with same. Papers Numbered Order to Show Cause and Affidavits Annexed 1 Affirmation/Affidavits in Opposition 2 Replying Affidavits 3 Filed Papers 4-5 DECISION AND ORDER Background In a notice of petition and petition on February 3, 2021 Petitioner commenced a holdover proceeding against Respondent alleging that Respondent was engaging in unreasonable behavior that substantially infringed of the use and enjoyment of other tenants or occupants, and caused a substantial safety hazard to others. Specifically, the Notice to Cure alleged that (i) Respondent engaged in a course of conduct which appeared to be intentional harassment of the board, superintendent and other residents of 555 Bronx River Road, Yonkers New York. (ii) That on October 5, 2020 commencing at 4:24 AM and continuing until 6:55 AM Respondent called the superintendent 225 times each call lasting for 18 seconds (iii) Respondent at various times between April 2020 and December 2020 at various hours of the day and night, Played a television, radio or other audio device at a level which allegedly disturbed others inside and outside the premises. (iv) Petitioner alleged that it warned Respondent about the alleged loud noises emanating from his apartment (v) Respondent allegedly threatened board members and the property manager in e-mails. On January 21, 2021 Petitioner served Respondent with a Notice of Termination. The notice provides in relevant part: “PLEASE TAKE NOTICE that you have failed and refused to cure and correct the lease defaults described in the Thirty Day Notice to Cure dated December 18, 2020 and duly served on upon you by the undersigned Owner on December 18, 2020, a copy of which said Thirty Day Notice to Cure Lease Defaults is annexed hereto and made a part hereof. (emphasis added) TAKE FURTHER NOTICE that pursuant to the applicable provisions of Your lease of the above referenced Premises, the undersigned Owner has elected to and does hereby cancel said lease effective as of 12:01 AM on January 31, 2021, at which time the term of said lease and your tenancy of the Premises shall terminate and expire. TAKE FURTHER NOTICE that you are required to remove from said Premises and to quit, vacate and surrender vacant possession thereof to the Owner, together with all keys thereto, no later than 12:01AM on January 31, 2021, the time and date your lease and tenancy terminate and expire, and if you fail to do so, the Owner shall commence appropriate legal proceedings to have you removed and evicted from the Premises and for such other and further relief the Owner shall deem appropriate.” Respondent filed an answer and amended answer denying the allegations. Following Petitioner’s failure to appear on March 26, 2021, the matter was dismissed on the record. Petitioner submitted correspondence to the court and counsel seeking the court reinstate the proceeding as Petitioner appeared virtually instead of in person. The court (Inlaw, J.) granted Petitioner’s application and the matter was scheduled for a nuisance hearing. Respondent submitted the above-entitled Order to Show Cause seeking to dismiss or in the alternative to grant Respondent leave to conduct discovery. Petitioner opposed. Arguments Respondent seeks to dismiss on the following grounds (i) Respondent alleged that there was no basis to restore the matter after the dismissal on the record; (ii) Respondent contends the Notice of Termination was defective as it failed to state whether further alleged incidents of misconduct occurred and (iii) Respondent argued that the Notice of Termination deprived Respondent sufficient time to cure. In the alternative, Respondent requested leave to conduct discovery of copies of the alleged e-mails of purported threats made by Respondent to Petitioner’s staff, copies of prior written warnings and emails allegedly made by Petitioner, the names of witnesses to the alleged noise violations, and records of Respondent’s complaints to management regarding vehicles idling outside his apartment. Petitioner opposed the motion and argued that counsel appeared, albeit on a Microsoft Teams link and not in person. Petitioner alleged that the error was excusable, that counsel promptly moved to vacate the dismissal and maintains that Petitioner has a meritorious cause of action. Petitioner further posited that there is a strong public policy to hear cases on the merits and as Respondent failed to demonstrate prejudice, the Court should not vacate its prior decision. With respect to the termination notices, Petitioner argued that the conduct alleged was arguably not amendable to cure, yet Petitioner allowed “for at least the possibility that Respondent could take some affirmative steps to cure as outlined therein.” (Petitioner’s Affirmation in Opposition par. 5). Discussion I. Restoration to the Calendar “At any scheduled call of a calendar or at any conference…[i]f the defendant appears but the plaintiff does not, the judge may dismiss the action.” 22 N.Y.C.R.R. 202.27[b]. “In order to vacate a dismissal pursuant to 22 N.Y.C.R.R. 202.27, plaintiff was required to demonstrate a reasonable excuse for its failure to appear and a potentially meritorious cause of action.” Bank of N.Y. v. Mohammed, 130 A.D.3d 1419, 1420 [3d Dept, 2015]; citing 9 Bros. Bldg. Supply Corp v. Buonamicia, 106 A.D.3d 968 [2013]; Biton v. Turco, 88 A.D.3d 519 [2011]. “Whether a proffered excuse is ‘reasonable’ is a ‘sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness and the strong public policy in favor of resolving cases on the merits.” Suede v. Suede, 124 A.D.3d 869, 871 (2d Dept. 2015) citing Fried v. Jacob Holding, Inc., 110 AD3d 56, 60 [2013], quoting Harcztark v. Drive Variety, Inc., 21 AD3d 876, 876-877 [2005]; see Oller v. Liberty Lines Tr., Inc., 111 AD3d 903, 904 [2013]). The Court [Inlaw, J.] found a sufficient basis to vacate the Petitioner’s dismissal. The Petitioner’s delay in seeking the relief was a matter of hours if that and was not caused by Petitioner’s neglect of the case. See, Matter of Morales v. Marma, 88 A.D.3d 722, 723 [2011]. Further, the default was not willful. See Matter of Dos Santos v. Dos Santos, 76 A.D.3d 1013, 1015 [2010]. Petitioner did not fail to appear or manifest an intention to abandon the action. See White v. Incorporated Vil. Of Hempstead, 41 A.D.3d 709, 710 [2007]. Rather, Petitioner presented a reasonable excuse that counsel was mistakenly present virtually on the hearing date. At the time of the hearing, the court was transitioning to in person appearances. Finally, Respondent has failed to demonstrate significant prejudice. Perez v. Travco Ins. Co., 44 A.D.3d 738, 739 (2d Dep’t. 2007). Further, there is a “[s]trong public policy that matters should be disposed of on the merits.” Tokar v. Weissberg, 163 A.D.3d 1031, 1033 (2d Dept., 2018); Jong Gwon Kim v. Strippoli, 144 A.D.3d 982 (2d Dept. 2016); Rodgers v. 66 East Tremont Hgts. Hous. Dev. Fund Corp., 69 A.D.3d 510, 511 (1st Dept. 2010). Accordingly, this branch of Respondent’s motion is denied. II. Sufficiency of Notice of Termination Respondent contends that the notice fails to specify additional incidents or conduct that occurred after the cure date thereby rendering the Notice of Termination insufficient. The Court must determine whether the notice was “reasonable…in view of attendant circumstances.” 323 3rd St. LLC v. Ortiz, 13 Misc.3d 141 [A] [App. Term, 2d Dept., 2d & 11th Jud Dist., 2006] citing Hughes v. Lenox Hill Hosp. 226 A.D.2d 4, 18 [1st Dept 1996]. In making this determination, courts have considered several factors including: (i) Whether the notice sufficiently apprises Respondent of the grounds upon which the notice is based to enable Respondent to form a defense (see, 190 Riverside Dr. v. Nosei, 185 Misc. 2d 696,697 [App. Term, 1st Dept. 2000]). (ii) Whether the underlying facts of the grounds for termination are exclusively within one party’s knowledge (see, Haruvi v. Rosen, 10 Misc. 3d 137(A) [App. Term, 1st Dept. 2005]); and (iii) The likelihood that Petitioner determined in good faith that Respondent did not timely effectuate a cure; (see 31-67 Astoria Corp v. Landaira, 54 Misc.3d 131(A) [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2017] “A termination notice that fails to set forth the facts upon which the landlord relies for eviction is defective.” See, Oxford Towers Co v. Leites, 41 A.D.3d 144 [2007]. The termination notice in the above-entitled matter was sufficient as it alleged that the defaults specified in the notice to cure were not cured during the cure period. See Hew-Burg Realty c. Mocerino, 163 Misc.2d 639 [Civ. Ct. Kings Co., 1994]; 31-67 Astoria Corp. v. Landaira, 54 Misc.3d 131(A) [App Term, 2d Dept., 2017]. The sufficiency of a termination notice is governed by the reasonableness standard. See, Oxford Towers Co. LLC v. Leites, 41 A.D.3d 144 [1st Dept. 2007]; 31-67 Astoria Corp v. Landaira, 54 Misc.3d 131 [A]. The notice here alleged that the defaults specified in the notice to cure had not been cured and apprised the Respondent of the factual and legal basis for termination of the tenancy. Further the notice indicated that a copy of the Notice to Cure was annexed. Accordingly, Respondent was aware of the allegations and able to form a defense against the claim. III. Service of Notice to Cure Service of a proper notice of termination is a condition precent to termination of a tenancy. Chinatown Apts. v. Cho Cho Lam, 51 N.Y.2d 786, 788 [1980]. The Thirty Day Notice to Cure is dated December 18, 2020 and indicates that Respondent must Cure the alleged defaults by January 20, 2021, However, the Affidavit of Service indicates that the service was made by first class mail on December 18, 2020. The Termination Notice is dated January 21, 2021 which did not afford an additional five days for mailing. Matter of ATM One v. Landaverde, 2 N.Y.3d 472 (2004). “A valid predicate notice is a condition precedent to a holdover proceeding.” Jamison v. Jamison, 55 Misc. 2d 139 [A] [App. Term., 2d Dept., 2017]. As the notice provided was inadequate the above-entitled matter is dismissed. The Court need not reach the Respondent’s remaining arguments. Dated: November 1, 2021
