Recitation, as required by CPLR §2219, of the papers considered in the review of respondent’s motion to dismiss pursuant to CPLR 3211(a)(7) and NYCRR 2524.3(a)and(b) for failure to state a cause of action and petitioner’s opposition thereto. Papers NYSCEF Doc. No. Notice of Motion 7 Affirmation in Support 8 Memorandum of Law 9 Affirmation in Opposition 12 Reply Memorandum of Law 13 Exhibits 10 DECISION AND ORDER Upon the foregoing cited papers, the Decision/Order in this matter is as follows: DISCUSSION Petitioner commenced this summary holdover proceeding against respondent-tenant, Sandra Melendez, to recover possession of Apartment 6A, at 264 West Tremont Avenue, Bronx, NY 10453. A notice to cure dated August 11, 2022 was served on respondent alleging that respondent was in default under the terms of her lease with petitioner by permitting her daughter to engage in objectionable conduct. The conduct alleged was that her daughter, Marilyn Melendez, named as a respondent-undertenant herein, broke the glass on the building’s front door, enters the apartment through a fire escape, and is involved in gang activity. A notice of termination followed, terminating respondent’s tenancy on the grounds that she failed to cure by not excluding her daughter from the subject premises. When respondents failed to vacate from the subject apartment upon the expiration of the termination notice, the notice of petition and petition were served. Respondent interposed a pre-answer motion pursuant to CPLR 3211(a)(7) alleging that petitioner failed to state a cause of action for either breach of lease or nuisance in its pleadings. Respondent argues that the pleadings are vague, conclusory, lack material facts and fail to describe the misconduct alleged and complained of in detail or with any particularity. Respondent also alleges that the conduct does not rise to a level required to terminate the tenancy, as there was only one instance of conduct cited by petitioner, the breaking of the glass door, for which petitioner demanded the permanent exclusion of respondent’s daughter. Respondent further alleges that the termination notice fails to recite a single act occurring after the cure period expired. Petitioner opposes the motion on the grounds that respondent is in violation of the lease by permitting her daughter, an “unauthorized occupant” to reside in the subject apartment and engage in the activity described in the notice to cure. Petitioner further alleges that the termination notice was issued based upon respondent’s failure to permanently exclude her daughter from the subject apartment. Petitioner refers to the terms of the lease between the parties as prohibiting such conduct, and claims that the allegations in the notices are “specific enough” under the terms of the lease. Respondent replies by pointing out that this proceeding was not based on an alleged unauthorized occupancy, but rather upon breach of the lease caused by the alleged behavior of respondent’s daughter. Respondent reiterates its position that the notice to cure alleges only one specific instance of alleged nuisance behavior, and no nuisance conduct after the expiration of the notice to cure. DECISION AND ORDER In its opposition to respondent’s motion, petitioner failed to provide a true copy of the lease between the parties. Accordingly, it is impossible to determine whether the conduct alleges actually violates the terms of respondent’s lease with petitioner. But the overarching defects are in the notices themselves which are unspecific and fail to set forth a cause of action against respondent. Petitioner complained of poor conduct by respondent’s daughter, Marilyn Melendez, and alleged that she is not an authorized tenant. Among the conduct alleged is that respondent’s daughter entered the apartment via the fire escape, and that she and her guests engaged in “gang activity.” Petitioner does not allege specific dates, times, or occurrences where this conduct allegedly took place. Nor does petitioner describe what it considers to be “gang activity” and what adverse impact that conduct had upon the subject premises. 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 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). Petitioner’s allegations against respondent are conclusory, vague, and fail to describe with any particularity or specificity the conduct complained of as required by Section 2524.3(b) of the Rent Stabilization Code. Petitioner demanded in the notice to cure that respondent permanently deny her daughter entry into the subject apartment based upon generalized complaints of wrongful conduct. A liberal reading of the petition’s naked and conclusory statements does not support a cause of action for such draconian consequences. Moreover, if the lease proscribes certain acts as alleged by petitioner, those acts must be detailed in the predicate notices and the lease attached for review in opposition to a motion to dismiss. Here, the lease was not attached, and therefore it is impossible to determine if any breach of the lease has actually been alleged in the pleadings. RSC §2524.2(b) requires a predicate notice to state the facts necessary to establish the existence of grounds for eviction. Courts evaluate the sufficiency of the factual pleadings 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 (Civ. Ct. N.Y. Cty. 2016). A predicate notice must be definite and unequivocal. Carriage Court Inn, Inc., 138 Misc. 2d at 445. It 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. N.Y. Co. 2008). In the instant proceeding affording all favorable inferences to the facts alleged by the petitioner in its pleading, the motion to dismiss must be granted. The pleadings are deficient, vague and fail to state a cause of action against respondent. The lease which petitioner claims was breached by respondent was never submitted to the court, rendering it impossible to determine whether the allegations as they are, rise to a level that would constitute a breach of the lease and a cause of action against respondent. For the reasons stated herein, respondent’s motion is granted, and the proceeding is dismissed. This constitutes the Decision and Order of the Court. So Ordered: Dated: November 17, 2023
