Judge Sergio Jiminez recently held that in the context of holdover proceeding that both the Notice to Cure and the Notice of Termination must allege a legal ground and set forth sufficient facts to support that claim, otherwise the case may be dismissed.
In this case, the landlord sought possession of the premises after terminating the tenant’s 31 year-long tenancy on September 1, 2018 by serving a Notice to Terminate. The Notice to Cure alleged that the tenant violated a provision of the lease, which required the tenant to obtain the landlord’s written consent in order to install any paneling, flooring or anything that would make an alteration to the apartment. Further, the Notice also alleged that the tenant violated another provision of the lease, which required the tenant to obey the laws and regulations of the lease and comply with all laws, rules, requests, and directions of all governmental authorities.
The landlord alleged that both of these lease provisions were violated when the tenant installed a sub-floor above the main floor and altered the front door to fit over it without the written consent of the landlord, and without permits or approval from municipal authorities. Thereafter, the Notice to Terminate was served on the tenant, alleging that the tenant failed to cure the violation. The Notice of Termination simply mirrored the Notice to Cure without alleging any new instances of lease violations by the tenant after the expiration of the cure period.
The Court accordingly held that the Petition was to be dismissed because the Rent Stabilization Code (RSC) §2524.2(b) required that every notice to a tenant to vacate or surrender possession of a housing accommodation shall state the ground upon which the owner relies on to remove or evict a tenant, and the facts necessary to establish the existence of such a ground. The Court also referenced a few cases which established that a Notice of Termination that merely recites the legal ground for eviction without setting forth any of the facts upon which the proceeding at hand would be based is insufficient and cannot serve as a predicate notice for an eviction proceeding.
In the case at hand, the Notice of Termination only partially mirrored the Notice to Cure in that it restated the legal grounds for the case but left out the facts upon which the claim was based. Further, the Notice to Terminate was issued just one date after the cure date of July 14, 2018, without alleging how the landlord determined that on the 15th the breach was not cured by the 14th. Thus, the Court found the Notice of Termination to be defective, and further noted that a termination notice served just one day after the cure date that fails to set forth the relevant facts upon which the landlord relies for eviction is defective and gives the appearance of bad faith in its preparation. The Court also found that service of a valid termination is a prerequisite to commencement of a holdover proceeding and therefore the landlord’s petition was dismissed.
Accordingly, the Court stated that the Notice to Cure and the Notice of Termination are independent notices, both of which must allege a legal ground and set forth sufficient facts to support that claim. Further, the Court held that the both the Notice to Cure and the Notice of Termination should include facts as to the specific description of the alleged violation in the apartment, in this case the illegal alterations without the landlord’s consent. The Notice should also allege that the violation continued after the cure date and how the landlord discovered them.
The information above is intended to provide limited information only and is not legal advice. The laws relating to the requirements of housing matter notices are complex and technical. If you are a party to a matter concerning holdover proceedings or otherwise need further guidance in this or a related area of law, SINGH & RANI, LLP can assist you.
[1] See generally Sudimac v. Beck, NY Slip Op 50442(U) (Civ. Ct NY, Queens Cty. 2019).
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] See Sudimac v. Beck, NY Slip Op 50442(U) (Civ. Ct. NY, Queens Cty. 2019) (citing Kaycee W.113th Street Corp. v. Diakoff, 160 AD2d 573, 574, 554 NYS2d 216; See Berkeley Assoc. Co. v. Camlakides, 173 AD2d 193, 194, 569 NYS2d 629, affirmed, 78 NY2d 1098, 578 NYS2d872, 586 NE2d 55; First Sterling Corp. v. Zurkowski, 142 Misc2d 978, 979, 542 NYS2d 899).
[9] See generally Sudimac v. Beck, NY SlipOp 50442(U) (Civ. Ct. NY, Queens Cty. 2019).
[10] Id.
[11] Id.
[12] Sudimac v. Beck, NY Slip Op 50442(U)(Civ. Ct. NY, Queens Cty. 2019) (citing Chinatown Apts. v. Chu Cho Lam, 433NYS2d 86).
[13] Sudimac v. Beck, NY Slip Op 50442(U)(Civ. Ct. NY, Queens Cty. 2019) (citing Bellstell 140 East 56th St., LLC. v.Layton, 180 Misc 2d 25, 687 NYS2d 536).
[14] See generally Sudimac v. Beck, NY SlipOp 50442(U) (Civ. Ct. NY, Queens Cty. 2019).
[15] Id.
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