Recitation, as required by CPLR 2219(A), of the papers considered in the review of these two motions by petitioner for an order granting petitioner leave to conduct discovery and directing respondent to pay use and occupancy and of this cross motion by respondent to dismiss the petition. PAPERS NUMBERED Notice of Motion and Affidavits Annexed 1, 2, 3a Order to Show Cause and Affidavits Annexed Answering Affidavits 3b, 4 Replying Affidavits 5, 6 Exhibits Stipulations Other Decision/Order Upon the foregoing cited papers, the Decision/Order in this Motion is as follows: Petitioner commenced this summary nonprimary residence proceeding seeking to recover possession of the subject premises located at 443 East 51st Street, Apt. 5E, New York, New York from respondent Hannelore Haslacher on the grounds that she does not reside at the apartment as her primary residence. Respondent, an 82-year-old rent stabilized tenant of over 47 years, filed an answer raising various defenses including failure to state a cause of action, lack of jurisdiction, that respondent has at all times maintained the apartment as her primary residence and that the predicate notice fails to allege sufficient facts. Respondent also interposed a counterclaim for attorney’s fees. Petitioner moves for an order granting leave to conduct discovery pursuant to CPLR §§408, 3101, 3106, 3111 and directing respondent to pay use and occupancy. Respondent cross-moves for an order dismissing the petition pursuant to CPLR §3211(a)(7) for failure to state a cause of action. In seeking dismissal, respondent argues that the predicate notice is impermissibly vague and conclusory as it contains only one broad and unparticularized allegation and one case-specific factual allegation to substantiate petitioner’s claim of nonprimary residence. Petitioner opposes and asserts that respondent’s cross motion is premature and “hyper-technical” and that any defects or irregularities in the notice may be disregarded as respondent has failed to assert any prejudice in defending against this proceeding. The notice of nonrenewal dated August 22, 2022 provides the following facts upon which petitioner relies to establish the existence of respondent’s nonprimary residence: 1. Upon information and belief, Hannelore Haslacher no longer permanently resides in the Apartment and as a consequence of that, the Apartment is not being maintained by Hannelore Haslacher as her primary or principal place as required under applicable law. 2. Upon information and belief, the Tenant maintains her principal and/or primary residence at an abode, place or facility other than the Apartment, that abode, place or facility being C/Josep Pla, 6, (17252) S. Antoni Calonge, Girona, Spain. 3. Upon information and belief, the Tenant does not intend to return to the apartment and primarily reside there as required and contemplated by the applicable laws and codes. On a motion to dismiss pursuant to CPLR §3211(a)(7), the pleading is liberally construed such that the facts alleged in the pleadings are accepted as true and the petitioner is afforded the benefit of every possible favorable inference in order to determine only whether the facts as alleged fit within any cognizable legal theory. Leon v. Martinez, 84 NY2d 83, 87-88 (1994) (citing Morone v. Morone, 50 NY2d 481, 484 (1980); Rovello v. Orofino Realty Co., 40 NY2d 633, 635 (1976)). The proper inquiry is whether, within the four corners of the pleading, the proponent of the pleading has a cause of action, not whether he has stated a cause of action. Guggenheimer v. Ginzburg, 43 NY2d 268, 275 (1977); Foley v. D’Agostino, 21 AD2d 60, 64-65 (1st Dept 1964). Whether the allegations in the petition may ultimately be established is not determined on a motion to dismiss under CPLR §3211(a)(7). EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 19 (2005). Petitioner may rely solely on its pleading. See Rovello, 40 NY2d at 635. When a landlord seeks to terminate a tenancy on the grounds that a tenant is not occupying the subject premises as her primary residence, the notice of nonrenewal must state the grounds upon which the landlord relies and sufficient facts to establish the existence of the alleged nonprimary residence. 9 NYCRR §2524.2(b). The predicate notice need not lay bare its proof provided the notice as a whole sufficiently advise the tenant to permit him/her to frame a defense. McGoldrick v. DeCruz, 195 Misc2d 414, 415-416 (AT 1 2003) (citing Rascoff/Zsyblat Org. Inc. v. Directors Guild of America, Inc., 297 AD2d 241, 242 (1st Dept 2002)). In determining the sufficiency of a predicate notice, the appropriate standard is one of reasonableness in view of all attendant circumstances. Hughes v. Lenox Hill Hosp., 226 AD2d 4, 17-18 (1st Dept 1996). A notice which merely states the legal ground without any supporting facts is insufficient. Berkeley Assocs. v. Camlakides, 173 AD2d 193, 194 (1st Dept. 1991); London Terrace Gardens, L.P. v. Heller, 40 Misc3d 135(A) (AT 1 2009). A notice which only states that the tenant was residing at an alternate location without additional factual allegations is also insufficient. Mak v. Yun Pan Lee, 12 Misc3d 142(A) (AT 1 2006). A notice which states grounds in a conclusory fashion without giving particulars of any kind is inadequate as a predicate to a summary proceeding. See Garsen v. Hohenleitner, 73 Misc2d 192 (AT 1 1973). A predicate notice serves as a condition precedent on which to terminate a tenancy. Chinatown Apts. v. Chu Cho Lam, 51 NY2d 786, 788 (1990). A defective notice is not capable of being amended and mandates dismissal of the petition. Id. Here, the notice of nonrenewal states only one factual allegation to support petitioner’s claim of nonprimary residence: that respondent lives at a specified address in Spain. The other allegations that respondent no longer permanently resides in the apartment and that respondent lacks an intent to return to live at the apartment are conclusory and mere conjecture unfounded on any other facts. Petitioner attempts to rehabilitate its notice by submitting an affidavit from petitioner’s agent. Neil Ritter. Mr. Ritter claims that petitioner has evidence that respondent has not been observed entering and leaving the apartment, carrying groceries or laundry into and out of the apartment, requesting repairs, disposing of garbage, and used an absentee ballot to vote and that the death certificate for respondent’s husband indicates that respondent resides at the Spain address. These claims alleged in petitioner’s affidavit are new, additional allegations that, notably, are not contained in the notice of nonrenewal. Affidavits may be used to preserve inartfully plead claims, but they are not to be examined to determine whether there is evidentiary support for the pleading. Rovello, 40 NY2d at 635. While an affidavit may be used to defend against a motion seeking dismissal based on the insufficiency of the pleadings by clarifying or even amplifying the allegations already contained in the notice, an affidavit is not a substitute for a proper predicate notice. Measured against the test of reasonableness in view of the attendant circumstances in determining the sufficiency of the notice, the notice herein is impermissibly vague and lacking in sufficient factual allegations. Since a predicate notice cannot be amended, Chinatown, 51 NY2d at 788, the notice of nonrenewal is insufficient to serve as predicate notice and the petition must be dismissed. Accordingly, respondent’s motion to dismiss pursuant to CPLR §3211(a)(7) is granted based on a defective notice and petitioner’s motions for discovery and use and occupancy are denied as moot. The petition is dismissed and respondent’s counterclaim for attorney’s fees is severed. This constitutes the decision and order of the court. Dated: July 20, 2023
