Recitation, as required by CPLR 2219(a): Notice of Motion and Affidavits Annexed 1 Order to Show Cause and Affidavits Annexed 0 Answering Affidavits 2 Replying Affidavits 3 Exhibits 4 Stipulations 0 Other 0 DECISION/ORDER This is a summary holdover proceeding. Petitioner seeks to recover possession of the Basement Front apartment located at 415 Herzl Street, Brooklyn, NY (“premises”) by serving a Ninety (90) Day Notice of Termination And To Vacate (“Notice of Termination”) pursuant to Real Property Law §226-c(2)(d). The premises are unregulated. The Notice of Termination, dated August 24, 2022, was served on August 31, 2022. (See, NYSCEF Doc. No. 1). It is undisputed that Respondent Tahir Dunston filed an Emergency Rental Assistance Program (“ERAP”) application # BQQAK and that Petitioner accepted ERAP funds on August 28, 2022. (See, NYSCEF Doc. No. 13 and 14). At this juncture, Respondent, by counsel, moves for an order pursuant to CPLR §3211(a)(1) to dismiss this proceeding. Respondent alleges that by accepting ERAP payments Petitioner has vitiated the Notice of Termination and is barred from evicting Respondent in this summary holdover proceeding, which should be dismissed. In opposition, while Petitioner acknowledges that Respondent cannot be evicted for a year after Petitioner accepted ERAP funds, Petitioner argues that the governing statute does not require dismissal and that proceeding can still go forward with a stay of execution on any warrant through August 28, 2023. The motion is fully briefed and the court reserved decision on May 17, 2023. A motion to dismiss pursuant to CPLR §3211(a)(1) may be granted “only if the documentary evidence submitted by the moving party utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law.” (Cavaliere v. 1515 Broadway Fee Owner, LLC, 150 A.D.3d 1190, 1191 [2nd Dep't 2017]; citing, Goshen v. Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]). In the case at bar, Respondent has provided undisputed documentary evidence that Petitioner accepted ERAP funds on August 28, 2022. (See, NYSCEF Doc. No. 13 and 14). It is also undisputed that service of the Notice of Termination by nail and mail was completed three (3) days thereafter, on August 31, 2022. (See, NYSCEF Doc. No. 1). The Notice of Termination, which instructed Respondent to vacate the premises on or before November 30, 2022, made no mention of ERAP. The Notice of Termination was silent as to ERAP even though the statute is clear that acceptance of payment for rental arrears through ERAP shall constitute an agreement by the landlord not to evict for reason of expired lease or holdover tenancy for twelve (12) months after the landlord receives the first assistance payment. (See, Part BB, Subpart A, §9(2)(d)(iv), as amended by L. 2021, c. 417, Part A, §5). Petitioner has not asserted any exception to the foregoing twelve (12) month rule. Rather than delve into the sometimes-complicated nature of the ERAP statute, the issue presented to this court is of a more general principle, one of reasonableness. The question presented is whether the Notice of Termination, which directed Respondent to vacate by November 30, 2022, and was silent as to ERAP despite Petitioner’s accepting same three (3) days prior, was reasonable in light of the circumstances presented. Long before the acronym ERAP entered our lexicon, in evaluating the sufficiency of a predicate notice in a summary proceeding, “the appropriate test is one of reasonableness in view of the attendant circumstances.” (Oxford Towers Co. LLC v. Leites, 41 AD3d 144, 144-145 [1st Dep't 2007]; citing, Hughes v. Lenox Hill Hosp., 226 AD2d 4, 18 [1st Dep't 1996], lv denied 90 NY2d 829 [1997]). Thus, a notice which provides “the necessary additional information to enable the tenant respondent to frame a defense…was therefore adequate to meet the tests of reasonableness and due process.” (See, The Jewish Theological Seminary of America v. Fitzer, 258 AD2d 337, 338 [1st Dep't 1999]; see also, Rascoff/Zsyblat Org., Inc. v. Directors Guild of Am., Inc., 297 AD2d 241, 242 [1st Dep't 2002]). In reviewing the sufficiency of Petitioner’s Notice of Termination, the Court of Appeals has unanimously held that this court is limited to the factual allegations set forth in the Notice of Termination. (Domen Holding Co. v. Aranovich, 769 N.Y.S.2d 785, 789 [2003]). It is also well settled law that a deficient Notice of Termination cannot be cured retroactively. (Chinatown Apt. v. Chu Cho Lam, 433 N.Y.S.2d 86 [1980]). In the case at bar, applying the foregoing framework of analysis, the court finds the Notice of Termination is unreasonable and defective on its face based upon the documentary evidence provided. The Notice of Termination unequivocally directs Respondent to vacate the premises by November 30, 2022 without apprising Respondent of the fact that because Petitioner accepted ERAP funds on August 28, 2022 Petitioner cannot evict Respondent in this holdover proceeding for twelve (12) months thereafter, so the true vacate date would be no sooner than August 28, 2023. As such, the Notice of Termination is not only inaccurate, but fails to provide Respondent with necessary information to frame a defense.1 Ultimately, the test is one of reasonableness, and in view of the attendant circumstances herein the court finds that it is unreasonable for the Notice of Termination to remain silent as to Petitioner’s acceptance of ERAP. Therefore, the Notice of Termination which forms the basis of this eviction proceeding is insufficient. Accordingly, Respondent’s motion to dismiss is granted and the proceeding is dismissed without prejudice. This constitutes the Decision/Order of this court, which shall be uploaded to NYSCEF. Dated: June 29, 2023
