Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion: Papers Numbered Order to show Cause/ Notice of Motion and Affidavits /Affirmations annexed Answering Affidavits/ Affirmations Reply Affidavits/ Affirmations Memoranda of Law Other Decision / Order Upon the foregoing cited papers, the Decision/ Order on petitioner’s motion to strike respondent’s defenses and counterclaims pursuant to CPLR 3211 and respondent’s cross-motion to dismiss based upon petitioner’s failure to state a cause of action is decided as follows: This is a summary holdover proceeding where the petitioner seeks to terminate the rent stabilized tenancy of respondents based on the allegation that respondents violated a substantial obligation of the lease and the Rent Stabilization Code by illegally subletting the subject apartment and failing to maintain the premises as their primary residence. Petitioner first served respondents with a notice to cure and then subsequently with a notice of termination. Respondent Shemika Perez appeared by counsel, who filed a notice of appearance in March 2022 and filed a verified answer and demand for bill of particulars in May 2022. The petitioner filed the within motion to strike respondent’s defenses and counterclaims pursuant to CPLR 3211 and respondent opposed the motion and cross moved to dismiss the pleadings pursuant to CPLR 3211(a)(1) and (a)(7) based upon petitioner’s failure to state a cause of action due to deficiencies in the predicate notices. Petitioner opposed the cross-motion to dismiss in its entirety. RESPONDENT’S CROSS-MOTION TO DISMSS Respondent opposes petitioner’s motion in its entirety and cross-moves pursuant to CPLR 3211(a)(1) and (a)(7), to dismiss the petition based upon petitioner’s failure to state a cause of action due to deficiencies in the predicate notices, alleging that both the Notice to Cure and Notice of Termination they are impermissibly vague and conclusory and lack the specificity required by Section 2524.3(b) of the Rent Stabilization Code. Respondent alleges she has resided at the subject premises for over fifteen years as her primary residence and currently resides there with her minor child and her brother. Respondent states she took in a roommate around September 2021, but claims the roommate felt unsafe and left the unit after the petitioner served her with the notice to cure. Respondent alleges she has never resided elsewhere since 2006 nor sublet her apartment and seeks to dismiss this proceeding alleging that the predicate notices are fatally defective, legally insufficient to maintain this holdover proceeding and are vague, conclusory and fail to detail the specificity necessary to state a cause of action for illegal subletting. A predicate notice served pursuant to the Rent Stabilization Code must state the facts necessary to establish the ground for eviction. 9 N.Y.C.R.R. 2524.2. If the notice of termination is insufficient, the proceeding must be dismissed. See Chinatown Apts., Inc. v. Chu Cho Lam, 51 N.Y.2d 786 (1980). Respondent argues that a defective notice also renders the petition insufficient to state a cause of action. Carriage Court Inn, Inc. v. Rains, 138 Misc. 2d 444, 445 (Civ. Ct. 1988). Here, respondent asserts Petitioner’s Notice to Cure and Notice of Termination are insufficient to maintain the instant holdover summary proceeding for illegal sublet and must be dismissed. The petitioner opposes the motion in its entirety. RSC §2524.2(b) states that to be legally sufficient a predicate notice must state the facts necessary to establish the existence of grounds for eviction. Respondent is correct that court must evaluate the sufficiency of a predicate notice in a holdover eviction proceeding based on a standard of reasonableness “in view of all attendant circumstances.” Concourse Green Assocs., LP v. Patterson, 53 Misc. 3d 1206(A), 46 N.Y.S.3d 474 (N.Y. Civ. Ct. 2016). A predicate notice must state the alleged defaults with sufficient specificity, so that the tenant will be able to understand the landlord’s claim, and to present a defense. Id. 297 Lenox Realty Co. v. Babel, 19 Misc. 3d 1145(A), 867 N.Y.S.2d 21 (Civ. Ct. 2008). When an eviction proceeding is premised on an alleged illegal sublet, the predicate notice must allege specific facts in support of the claim that a non-tenant’s occupancy constitutes a sublet. See, 888 East 96th Street LLC vs. Hargrove, 2018 NY Slip Op 51558(U), (App. Term, 2nd Dept, November 2, 2018). In Hargrove, the Notice to Cure stated that the “tenant had not been observed residing at the premises ‘for many months’ and was actually residing at a different address, and that tenant had sublet the premises to Mark Antoine without landlord’s prior knowledge and written consent.” Despite these details, the Appellate Term affirmed the housing court’s decision dismissing the petition, as the “predicate notice failed to allege facts showing that any type of contractual agreement existed between tenant and Antoine, her son, or that Antoine’s occupancy was by virtue of a right that could not be revoked for a fixed period of time, or any other facts to support the claim that Antoine’s occupancy had risen to the level of a sublet.” Generally, a petition based on illegal sublet is properly dismissed “in the absence of any specific factual allegations that would support landlord’s claim that [the] occupancy constituted a sublet.” Respondent asserts the Notice to Cure and Notice of Termination fail to allege any facts indicating who is allegedly subleasing the apartment or how the sublease is structured. The Notice to Cure claims that Respondent violated terms of the lease by “illegally assigning and subletting the subject apartment to ‘John Doe’ and/or ‘Jane Doe’ without the permission of the landlord and by not maintaining the apartment as her primary residence.” The Notice of Termination states that Respondent “failed to remove the illegal subtenants and maintain the subject premises as [her] primary residence.” Respondent argues the statements are mere conjecture unsupported by facts, lacking statements from anyone with personal knowledge of the allegations and fail to provide necessary details to support an illegal sublet claim. The notices herein do not contain any facts about how or to whom respondent sublet her apartment. Petitioner alleges the “John or Jane Does” were purposefully concealed, but does not give any supporting facts as to how they know that a sublet had occurred. A close review of the notice to cure and termination notice reveal there is no specific allegation regarding a sublet relationship or agreement, just an allegation that respondent illegally assigned or sublet to a John Doe or Jane Doe. Here respondent argues the vague and conclusory statements in the notices fail to state a cause of action for illegal sublet, and like in Junas and other related cases, the court should dismiss the petition. Respondent asserts that the Notice of Termination is also defective in that it fails to allege any incidents after the deadline stated in the Notice to Cure. Courts have repeatedly held that in order to form a proper predicate for a holdover proceeding, a notice of termination must set forth specific acts of misconduct that occurred subsequent to the deadline set in a previous notice to cure. See, 31-67 Astoria Corp. v. Landaira, 54 Misc.3d 131(A) (App. Term 2nd. 11th & 13th Jud. Dists 2017). In 31-67 Astoria Corp. v. Landaira, the Appellate Term, Second Department held that a termination notice “was defective because it failed to allege that the defaults specified in the notice to cure, which were curable, had not been cured during the cure period.” 54 Misc.3d 131(A), 52 N.Y.S.3d 249 (App. Term 2d Dept 2017) citing Hew-Burg, 163 Misc.2d 639. 34. In Junas, an illegal sublet holdover like the present case, the court explained that “[r]equiring a landlord to actually allege the facts on which it is basing its conclusion that the tenant failed to cure its default would effectuate the regulation’s purpose of discouraging baseless eviction claims founded upon speculation and surmise.” 55 Misc. 3d at 600, 45 N.Y.S.3d at 924. Here, respondent argues Notice of Termination fails to specifically allege that the conduct outlined in the Notice to Cure continued after the cure period elapsed. Petitioner set a deadline of December 13, 2021 to cure the alleged violation by “immediately remov[ing] all illegal occupants and maintain[ing] the apartment as his [sic] primary place of residence.” (NYSCEF Doc 3.) The Notice of Termination, dated December 16, 2021, three days after the date to cure, is nearly identical to the Notice to Cure but with the addition of two sentences, both essentially alleging the nonprimary residence of respondent. The additional language in the Notice of Termination states: “1. Upon information and belief, Shemika Perez maintains her primary residence at 2021 Farragut Road, Apt. 2B, Brooklyn, NY 11210 and 2. Shemika Perez has not been observed at the subject premises since at least June 2021.” However, no other statement in the notice of termination addresses the allegations of the notice to cure or allege specific facts on how respondent failed to cure the alleged illegal sublet. No details are offered as to the nature of the ongoing alleged sublet by John or Jane Doe. The notice of termination on its face focuses primarily on the alleged non-primary residence of respondent, but not the illegal sublet allegations. No other statements in the Notice of Termination specifically address the issue of cure, except to allege that the respondent has failed to remove the alleged illegal subletters. As the court in Junas explains: [I]t is surely more difficult to determine whether a tenant has cured a sublet within only a day or two of the expiration of the cure period. Under the facts alleged here, Respondent could have conceivably cured the sublet while still maintaining some residence in Connecticut (as alleged in the cure notice) and allowing other individuals live in the apartment. The mere observation of other occupants in the apartment the day after the cure period expired (or some evidence tying Respondent to the Connecticut residence) would not be sufficient evidence to conclude that Respondent failed to cure. In many cases, and perhaps most cases involving illegal sublet, a landlord will have to undertake further and more thorough investigation to determine whether the tenant has cured the conduct of which the landlord has complained (cf. 128 Second Realty LLC v. Dobrowolski, 51 Misc 3d 147[A], 2016 NY Slip Op 50772[U] [App Term, 1st Dept 2016, Shulman, J., concurring] [noting that certain cases require "thorough facts-investigation" before they are commenced to avoid possibility of frivolous cases]) 76 W. 86th St. Corp. v. Junas, 55 Misc. 3d 596. 39. In the case at bar, it is not clear whether any subsequent investigation or inquiry was conducted into a cure, as the notice of termination makes no additional allegations sounding in “illegal sublet” or reference to respondent’s failure to cure during the required cure period. The notice of termination language, focuses on the allegation that respondent is not residing in the unit as her primary residence, with limited details about the illegal sublet allegation, except to state that the respondents have failed to remove the illegal subtenants, believe respondent resides elsewhere and allege respondent has not been observed at the premises June 2021. Courts have generally held that deficiencies in predicate notices are not curable. See Chinatown Apts. Inc. v. Chu Cho Lam, 51 N.Y.2d 786 (1980). Respondent asserts that the Notice of Termination is impermissibly vague and fails to allege that respondent engaged in further conduct as described in the Notice to Cure and for these reasons respondent alleges the pleadings are fatally defective. Petitioner opposes respondent’s motion to dismiss the pleadings in its entirety and argues that respondent’s allegation that the predicate notice is insufficient and in violation of the Rent Stabilization Code, is based on a misinterpretation of the law and should not be considered by this court in determining Petitioner’s motion to dismiss. RSC §2524.2(b) provides that a predicate notice must state the facts necessary to establish the existence of grounds for eviction. Petitioner alleges that respondent’s conduct has been continuous and ongoing since at least 2021 and that during this period respondent’s absence from the subject apartment has been continuous and ongoing and that the unknown occupant’s possession of the subject apartment has also been continuous and ongoing. Petitioner asserts this type of conduct is not subject to identification by specific dates or times as it is continuous and ongoing and thus petitioner argues that its predicate notice is neither vague nor defective. Much of petitioner’s argument in support of its pleadings points to language in the termination notice which states that respondent has not been observed at the subject premises since at least June 2021, to show there is an ongoing alleged breach of the lease and the notice alleges the respondent failed to remove the illegal subtenants. Furthermore, petitioner asserts that Respondent’s continuous and ongoing conduct, in violation of the rent stabilization code, has concealed the identity of the individual allegedly occupying the subject apartment. The petitioner explains that for this reason it was unable to provide a specific name of the occupant in the predicate notice, but petitioner does not offer any details as to how they knew that the respondent had sublet the unit to an unnamed John or Jane Doe. Respondent argues that the predicate notice should be found defective because it lacks “any specific factual allegations that would support landlord’s claim that [the] occupancy constituted a sublet”. See 888 East 96th Street LLC vs. Hargrove, 2018 NY Slip Op 51448(U), (App. Term, 2nd Dept, decided November 2, 2018). The Court continues to say “[t]o the extent that landlord alleged that tenant no longer used the apartment as her primary residence, such allegation is more properly resolved in the context of a nonprimary residence proceeding.” I.d. Respondent further relies on East Vil. Re Holdings LLC v. McGowan, where the court states “[a] holdover summary eviction proceeding must be based on concrete facts, not speculation or surmise, as evidenced by sufficient specific factual allegations in the predicate notice.” East Vil. Re Holdings LLC v. McGowan, 53 Misc. 3d 1201(A) (Civ., NY, decided September 19, 2016). The allegations in petitioner’s pleadings are also more properly resolved in the content of a primary residence proceeding. Petitioner opposes respondent’s motion to dismiss and argues they have stated valid causes of actions for illegal sublet and non-primary residence. CPLR 3211(a)(7) provides in relevant part that; “A party may move for judgment dismissing one or more causes of action asserted against him on the ground that the pleadings fail to state a cause of action…”. When the sufficiency of the pleadings is attacked, the allegations contained in the complaint, as supplemented by the moving papers, “must be given their most favorable intendment.” See, Arrington v. The New York Times Co., 55 N.Y.2d 433 (1982), cert. denied, 459 U.S. 1146, 103 S.Ct. 787; Dulberg v. Mock, 1 N.Y.2d 54 (1956) US. The Courts have regularly held that, on a motion to dismiss made pursuant to C.P.L.R. §3211, the pleadings are to be construed liberally, and the court should accept as true the facts as alleged in the complaint, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.” See also Leon v. Martinez, 84 N.Y.2d 83 (1984); Morone v. Morone, 50 N.Y.2d 481 (1980); Sotomayor v. Kaufman, Malchman, Kirby & Squire, LLP, 252 A.D.2d 554 (App. Div. 2nd Dept. 1998). In evaluating the facial sufficiency of a predicate notice in a holdover proceeding, “the appropriate test is one of reasonableness in view of the attendant circumstances.” Hughes v. Lennox Hill Hosp., 226 AD2d 4 (1st Dept. 1996). The notice must “provide the necessary additional information to enable the tenant to frame a defense to meet the tests of reasonableness and due process.” Carriage Court Inn, Inc. v. Rains, 138 Misc.2d 444 (Civ. Ct. N.Y.Co.1988). The Court of Appeals in Leon v. Martinez, 84 NY 2d 83 (1994) held “On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction. We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.” As stated in Guggenheimer v. Ginzburg, 43 NY2d 268 (1977) “Initially, the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegation are discerned which taken together manifest any cause of action cognizable at law, a motion for dismissal will fail.” The court, when reviewing the adequacy of a predicate notice, determined the appropriate standard for adequacy of a predicate notice, is one of “reasonableness in view of the attendant circumstances.” Hughes v. Lennox Hill Hospital, 226 AD2d 4 (1st Dept, 1996) The notice in question must provide necessary additional information to “enable the tenant…to frame a defense” in order to be adequate to meet the tests of reasonableness and process. Jewish Theological Seminary of America v. Fitzer, 258 AD2d 337 (1st Dept, 1999) Here the court finds that the petitioner fails to provide sufficient supporting details as to why it believes respondent illegally sublet the unit and primarily focuses on its allegation that the respondent no longer resides in the unit as her primary residence. Accordingly, this court is constrained to grant respondent’s motion to dismiss the pleadings. This dismissal is without prejudice to petitioner’s right to file a nonprimary residence proceeding or an illegal sublet proceeding with sufficient supporting details. PETITIONER’S MOTION TO STRIKE RESPONDENT’S DEFENSES & COUNTERCLAIMS Petitioner moves to strike all of respondent’s defenses and counterclaims, alleging that all lack merit. In determining a motion to dismiss pursuant to CPLR 3111(a) pleadings must be liberally construed and the court must “accept the facts as alleged in the complaint as true, accord plaintiffs the benefits of every possible favorable inference, and determine only whether the facts as alleged fit into any cognizable legal theory. See, Leon v. Martinez, 84 NY2d 83 (1994) Petitioner asserts that CPLR 3211(b) authorizes petitioner to move to dismiss affirmative defenses on the ground that they have no merit. See, Albin v. First Nationwide Network Morg Co., 248 AD 417 (2nd Dept 1998) When moving to dismiss or strike defenses, petitioner is correct that it bears the burden to establish that the affirmative defense is without merit as a matter of law. See, Greco v. Christoffersen, 70 AD 769 (2nd Dept, 2010) Based on this court granting respondent’s motion to dismiss the pleadings, the portion of petitioner’s motion seeking to strike respondents defenses and affirmative defenses is denied as moot. However, the court will however address the portion of petitioner’s motion seeking to strike respondent’s three counterclaims. Respondent’s first counterclaim is sounding in harassment. Petitioner seeks to strike this counterclaim and alleges that the claim for harassment is on its face insufficient and untimely. Petitioner denies respondent’s allegation that this proceeding is frivolous and even if somehow there was a finding that it was frivolous, petitioner argues there must be first a finding that there have been repeated baseless proceedings commenced against respondent, which is not alleged in the harassment counterclaim. Claims of harassment must fall into enumerated definitions of what constitutes harassment of tenants as set forth in NYC Administrative Code Section 27-2004(a)(48); allegations related to harassment are stated in paragraphs 14 to 20 of respondent’s answer. The Administrative Code of the City of New York §27-2005 (d) provides that “[t]he owner of a dwelling shall not harass any tenants or persons lawfully entitled to occupancy of such dwelling.” Section 27-2004 of the Administrative Code defines “harassment” as “any act or omission by or on behalf of an owner that causes or is intended to cause any person lawfully entitled to occupancy of a dwelling unit to vacate such dwelling unit or to surrender or waive any rights in relation to such occupancy.” Petitioner alleges there is no claim that petitioner interfered with essential services and asserts there are no violations in the subject unit. Sec 27-2004(a)(48)(b) states that only repeated failures to correct violation would constitute harassment. The court finds the broad allegations of “harassment” in respondent’s answer without any sufficient supporting details is insufficient to survive petitioner’s motion to strike. Accordingly, respondent’s harassment counterclaim is stricken, without prejudice to file such harassment claim in the Housing Part (HP) with sufficiently detailed supporting allegations. Respondent’s second counterclaim alleges violation of the warranty of habitability. As the proceeding as been dismissed by the court and this is a holdover proceeding and not a nonpayment proceeding, respondent’s warranty of habitability claim as it relates to this holdover proceeding does not present a valid defense, is not inextricably intertwined with the claims for relief sought herein and should be stricken. See, Blumental v. Chwast, 2003 NY Slip Op 50029 (U) (AT 1st Dept, 2003), 129th Cluster Assoc LP v. Levy, (Civ Ct NY Cty, 2012) Accordingly this counterclaim is stricken without prejudice to respondent’s right to file an HP (Housing Part) action seeking repairs. Respondent’s third and final counterclaim seeks reasonable attorneys’ fees pursuant to the lease. The petitioner asserts that as respondent has no meaningful defenses to the proceeding, then the counterclaim for attorney’s fees should likewise be stricken. As this court has dismissed the proceeding, petitioner’s portion of the motion seeking to strike respondent’s claim for attorney’s fees is denied. In light of the above findings, the court grants respondent’s motion to dismiss the proceeding and the proceeding is hereby dismissed. This constitutes the decision and order of the court, which the clerk is to upload to NYSCEF. Dated: October 31, 2023
