The following papers numbered 1 to 6 were read and considered on the Respondents motion for summary judgment and Petitioner’s cross motion to amend. Papers Numbered Notice of Motion and Affidavits Annexed 1 Notice of Cross Motion and Affidavits Annexed 2 Affirmation/Affidavits in Opposition 3 Replying Affidavits 4 Filed Papers 5-6 DECISION AND ORDER On or about June 30, 2019, Respondents entered into a written lease agreement for the property known as 79 Alexander Street #1358, Yonkers New York 10701. The lease term was for 23 months. The “Owner” designed in the written lease agreement is Avalon Yonkers ATI Site LLC. The agreement was executed on behalf of the Owner by “Avalonbay Communities Inc., Manager, As Agent for Owner.” On or about April 13, 2021 a ten-day notice issued by Avalonbay Communities Inc.” as “Owner” and signed by Jeremy Brown, Senior Community Manager, was served on the Respondents. The notice properly names the Respondents and the address of the leased property. The notice demanded Respondents cure the following violations before April 27, 2021. The violations listed were “(1) Tenant is interfering with management’s ability to operate the property by interacting with staff and residents in a hostile and aggressive manner when asked to comply with rules and regulations. (2) Tenant’s behavior set forth above is of such a threatening nature to the health, safety and well-being of staff and other tenants.” On or about June 11, 2021, “Avalonbay Communities Inc.” commenced the above-entitled summary proceeding by filing a Notice of Petition and Petition. The matter appeared on the court’s calendar on July 13, 2021. Respondent appeared and the matter was adjourned to October 6, 2021. Respondents seek an order pursuant to CPLR §3212 (a) (3) dismissing the Petitioner’s Notice of Petition and Petition on the grounds that Petitioner lacks standing, the notice to cure is defective and the action is a retaliatory eviction. Petitioner cross moved to amend the petition and to deny Respondents’ motion and schedule the matter for trial. A. Standing Respondents assert that the petition is defective in that it identified the owner of the leased premises as “Avalonbay Communities” when the leased property is owned by Avalon Yonkers ATI Site LLC. In response, Petitioner admits that Avalon Yonkers ATI Site LLC is the owner of the leased premises but asserts that the underlying notices were properly issued by Avalonbay Communities Inc., the named property manager and agent of the building in which the apartment is located. Petitioner also argued that as Respondents failed to demonstrate prejudice, the alleged deficiencies may be cured by amendment of the pleading. Petitioner cross moved to amend accordingly. RPAPL §721 (1) expressly delineates the parties who may maintain an eviction proceeding to include the “landlord or lessor.” In the present matter, the parties lease agreement directs Respondents to pay the monthly rent to Avalonbay Communities Inc — Avalon Yonkers. Further, Avalonbay is permitted under the Lease to enter Respondents property to perform repairs, renovations or upgrades. (Lease agreement par. 39) Petitioner correctly contends the underlying predicate notices issued by Avalonbay Communities were properly issued and that Avalonbay was entitled to commence the summary proceedings. See, QPII-143-45 Sanford Avenue LLC v. Spinner, 108 A.D.3d 558 (2nd Dept, 2013). However, the Petition incorrectly identifies the owner as “Avalonbay Communities Inc.” rather than “Avalon Yonkers ATI Site LLC.” Courts have long held that absent prejudice to the Respondent, this error can be cured by amendment of the pleadings. First Wisconsin Trust Co v. Hakimian, 237 A.D.2d 249 (2d Dept. 1997). Respondents do not assert any prejudice because of the miscaptioning of the petition and notice of petition. Accordingly, Petitioner’s cross motion to amend the caption is granted and the caption of this action is amended to read “Avalon Yonkers ATI Site, LLC, Petitioner v. Philip Visicaro and Francisca Lima, Respondents.” B. Notice of Termination Respondents next sought to dismiss based on the Petitioner’s alleged failure to comply with the provisions of RPL §226-c. RPL §226- c provides that whenever “[t]he landlord does not intend to renew the tenancy, the landlord shall provide written notice as required in subdivision two of this section.” The foregoing statute does not apply to the present circumstances. Rather, it was designed to protect tenants from being evicted without warning after their leases expired of their own terms. Here, Petitioner alleged that the termination of Respondents tenancy was based on Respondents alleged wrongful conduct. Accordingly, this branch of Respondents motion is denied. C. Notice to Cure The Notice to Cure alleged that Respondents were in violation of paragraphs 16, 17, 18 and 20 of the lease. Petitioner alleged that Respondents were “[i]nterfering with management’s ability to operate the property by interacting with staff and residents in a hostile and aggressive manner when asked to comply with rules and regulations” and further that this behavior threatened the health, safety and well-being of tenants and staff. Respondents allege that this notice is defective and intentionally vague. The respective paragraphs of the lease agreement listed above, are under the title “Rules and Regulations” and read as follows: 16. What rules and regulations will apply during the Lease term? You and your family, guests, invitees and agents are required to comply with all reasonable rules and regulations made now or later by us pertaining to the Community. These rules include both (i) Document 4 (the Community Policies), and (ii) rules and regulations posed at the Community from time to time. You must obey all laws and ordinances applicable to your Apartment and the Community, and you, your family, guests, invitees, agents and pets must not be disorderly or disturb other residents. 17. Are there any general behavioral guidelines? You must, and must cause your family, guests, invitees, agents and pets to (i) show due consideration for neighbors and not interfere with, disturb or threaten the rights, comfort, health, safety, convenience, quiet enjoyment and use of the Community by us, other residences and occupants and any of their guests, invitees or agents, (ii) not engage in abusive conduct toward us or our employees or agents, or (iii) not unreasonably interfere with our management of the Community. 18. What if I don’t follow the rules and regulations? As noted in the answer to Question 21 below, violations of any rules and regulations are a default under the Lease and, in addition to any other rights we may have, we have the right to terminate the Lease and take possession of the Apartment in accordance with applicable law. Notwithstanding any other provision of this Lease, under no circumstances are you entitled to a cure period for a violation of law or any criminal activity. 20. When will I be in default under this Lease? You will be in default under this Lease if you do not timely comply with any of the terms of this Lease, including without limitation Document 4 (the Community Polices) as amended from time to time, subject to any notice or cure periods identified on Document 3 (the Community Specific Terms). Petitioner’s Ex. A, Lease Agreement dated June 19, 2019 pp.9-10. In opposition, Petitioner maintains there is no requirement that the Notice to Cure or the Notice of Termination present all the facts or evidence upon which the Petitioner intends to rely at trial. Rather, Petitioner contends, the notice must provide the factual basis for the proceeding to enable the tenant to form and interpose any defenses. It is true that courts have held that any additional information that the Respondents might be as to specific instances may be obtained through a Bill of Particulars. City of New York v. Valera, 216 A.D.2d 237 (1st Dept. 1995). In Pinehurst Construction Corp v. Schlesinger, 38 A.D.3d 474 (1st Dept., 2007), the predicate notice alleged that the tenant created loud banging noises, intimidated, yelled and verbally harassed “other persons in the building” at “various times of the day and night.” The Appellate Division sustained the notice, finding that these allegations described a nuisance even though the notice failed to set forth any dates, specific instances, or names. The court, citing to Valera, supra concluded that additional information as to the breach was provided appropriately in the bill of particulars. The notice to cure should provide sufficient facts to enable the tenant to prepare a defense. The notice should provide “(1) the specific paragraphs in the lease with which the [tenant] allegedly failed to comply, (2) the manner in which it was claimed that [tenant] had not met the requirements of those paragraphs, (3) the time within which [tenant] had to comply, and (4) the consequences for failure to correct the alleged deficiencies.” King Party Center of Pitkin Ave., Inc. v. Minco Realty LLC, 286 A.D.2d 373 (2d Dep’t 2001). Here, the notice specified the sections of the parties lease agreement in support and indicated that the Respondents were “interfering with management’s ability to operate the property by interacting with staff and residents in a hostile and aggressive manner when asked to comply with rules and regulations.” While there are no dates, times or places of the alleged incidents, the notice provides sufficient facts to permit the Respondents to prepare a defense. This branch of Respondent’s motion is accordingly denied. D. Retaliatory Eviction Respondents seek dismissal of the above-entitled matter on the grounds that same is a retaliatory eviction. Retaliatory eviction is an affirmative defense. However, as there are issues of fact better determined after a trial of this matter, this branch of Respondents motion is denied. E. Answer That branch of Respondents motion which sought to file and serve an answer is granted. The Respondent is directed to serve and file an answer within five days after service of this Decision and order with notice of entry. CPLR §404. Upon the receipt of the answer, the Clerk of the Civil Court is directed to schedule the above-entitled matter for a trial and advise the parties accordingly. Dated and Entered: October 25, 2021
