Opinion
46312/16
03-08-2017
1605 Realty Corp., Petitioner, v. Carmen Cataquet, Respondent-Tenant, "John Doe" & "Jane Doe", Respondents-Unknown Occupants.
Attorney for Petitioner: Mark H. Cohen & Associates PC 1942 Williamsbridge Road, 2nd floor Bronx, New York 10461 (718) 933-1710 Attorney for Respondent: Boris Yankovich, Esq. The Legal Aid Society/Civil Practice — Housing Help Program 1118 Grand Concourse, Room 250 Bronx, New York 10456 (718) 410-0671
Attorney for Petitioner: Mark H. Cohen & Associates PC 1942 Williamsbridge Road, 2nd floor Bronx, New York 10461 (718) 933-1710 Attorney for Respondent: Boris Yankovich, Esq. The Legal Aid Society/Civil Practice — Housing Help Program 1118 Grand Concourse, Room 250 Bronx, New York 10456 (718) 410-0671 Diane E. Lutwak, J.
Recitation, as required by CPLR Rule 2219(a), of the papers considered in the review of the Respondent's Motion to Dismiss: Papers Numbered Notice of Motion, Affirmation, Affidavit & Exhibits A-N 1 Respondent's Memorandum of Law 2 Petitioner's Affirmation, Affidavit & Exhibit A in Opposition 3 Respondent's Reply Affirmation & Exhibits A-C 4
Upon the foregoing papers and for the following reasons, the motion to dismiss filed by Respondent-tenant Carmen Cataquet is decided as follows. PROCEDURAL & FACTUAL BACKGROUND
In this holdover eviction proceeding, the Petitioner-landlord 1605 Realty Corp. seeks to recover possession of Apartment 5 at 1605 Walton Avenue in the Bronx from the Rent Stabilized Respondent-tenant Carmen Cataquet. The Petition alleges that Petitioner terminated Respondent's tenancy pursuant to Section 2524.3(a) of the New York City Rent Stabilization Code (RSC) based upon her "willful, repeated, and chronic nonpayment and late payment of rent" (Petition at 2nd ¶ #1 ). Petitioner asserts that it commenced "at least 3 nonpayment proceedings" against Respondent under index numbers 26538/2013, 26217/2014 and 47535/2015. (Id.)
The first two numbered paragraphs of the Petition are both assigned the number "1".
The Petition is predicated on a "Fifteen (15) Day Notice of Termination" dated July 13, 2016, a copy of which is annexed to the Petition and incorporated therein by reference (Petition at ¶ 10), which notified the tenant that the basis for the proceeding was her "willful, repeated, and chronic nonpayment and late payment of rent" pursuant to RSC § 2524.3(b). The Notice alleges that Petitioner commenced "numerous court proceedings" against Respondent for nonpayment of rent in which she "failed to interpose any defense" and that the court entered "numerous judgments" in favor of Petitioner. The Notice further states that Petitioner was "forced to commence at least 3 nonpayment proceedings against you in the last 4 years" and refers to the same three index numbers cited in the Petition: 26538/2013, 26217/2014 and 47535/2015.
Respondent, represented by counsel, moves to dismiss under CPLR 3211(a)(7) based on failure to state a cause of action. Respondent argues that the three nonpayment proceedings referenced in Petitioner's papers are insufficient to establish grounds for eviction due to chronic rent delinquency:
• The first, L & T # 26538/2013, does not involve the parties to this proceeding and bears the caption "Robert C. Leupp as Trustee v Eileen C. Fox". A copy of the case summary from the court system's data base is attached to Respondent's moving papers as Exhibit D.In the alternative, Respondent requests permission under CPLR 3012(d) to submit a late answer.
• The second, L & T # 26217/2014, is one in which the court file reflects that Respondent had a significant defense of breach of the warranty of habitability, which she raised in her Answer (dated May 19, 2014, copy attached to moving papers as Exhibit F) and which was thereafter addressed in three Stipulations of Settlement (dated May 22, 2014, August 8, 2014 and April 13, 2015, copies attached to moving papers as Exhibits G, J and M, respectively) which contained access dates for Petitioner to inspect and repair a list of conditions, most of which persisted throughout the pendency of the case.
• The third, L & T # 47535/2015, was abandoned by Petitioner after it was filed, with no court appearances and no judgment and warrant. Copies of the Notice of Petition and Petition, dated August 5, 2015, are attached to the moving papers as Exhibit N.
The May 22, 2014 Stipulation lists the following conditions: "kitchen sink cabinet; shower rod; bedroom floor; metal rod in kitchen; kitchen floor; exterminator; bedroom ceiling". The August 8, 2014 Stipulation lists the following conditions: "bathroom sink; bedroom ceiling; kitchen sink; exterminator". The April 13, 2015 Stipulation lists the following conditions: "kitchen sink caving in; bathroom shower rod; bedroom ceiling caving from water damage upstairs". Respondent also mentioned her need for repairs in her affidavit in support of her first Order to Show Cause, sworn to July 3, 2014 (copy attached to moving papers as Exhibit I), as follows: "Repair fail to be done. This is the 2nd court case still no repair. Apartment in horrible conditions. Broken sink. Ceiling broken and leaks. Windows broken. Bedroom floor tiles. Pest. Exterminator. Shower Rod."
Petitioner opposes, arguing that it did adequately plead its cause of action for chronic rent delinquency based on the three nonpayment proceedings which it had to commence against Respondent since 2013:
• The first, L & T # 26538/2013, was misidentified in Petitioner's predicate notice and Petition due to an "unintentional typographical error" and the correct index number is L & T # 2638/2013. (Affirmation in Opposition at ¶ 8.) Petitioner does not include copies of any of the documents from that case, but alleges that it lasted for five months, resulted in the issuance of a final judgment and warrant of eviction, included four court appearances and was discontinued at the last court appearance when the arrears were paid in court by the City's Department of Social Services ("DSS"). Petitioner does not mention whether Respondent raised any defenses to that proceeding.Further, Petitioner alleges that Respondent has not paid any rent since June 2016 and, as of February 2017, owed $11,448.02. ADDITIONAL INFORMATION
• The second, L & T # 26217/2014, lasted for twelve months, resulted in the issuance of a final judgment and warrant, included seven court appearances and was discontinued after DSS paid the arrears.
• The third, which Petitioner now asserts was assigned L & T # 33767/2015 (not L & T # 47535/2015 as stated in the Petition and termination notice), was initiated in early June 2015 because, as per Petitioner's rent breakdown (Exhibit A to Petitioner's opposition papers), Respondent owed $1293 on June 1, which was more than a month's rent ($1077.50). However, as per Petitioner's managing agent, "Respondent never answered and a judgment was issued upon the Respondent's default. Before the warrant of eviction could issue the arrears were paid in full by DSS. For that reason, I had my attorneys discontinue that case." (Affidavit in Opposition at ¶¶ 5-7.) Petitioner does not include copies of any of the papers from this proceeding, although Petitioner's rent breakdown confirms that Respondent owed $1293 on June 1, 2015 and then had a zero balance as of June 29, 2015.
See Petitioner's Attorney's Affirmation in Opposition at ¶¶ 39-41 and Affidavit in Opposition of Petitioner's managing agent Avrohom Newhouse at ¶¶ 4-7.
Because of the various discrepancies regarding the index numbers of - and activity in - the first and third of the three nonpayment proceedings upon which Petitioner bases this case, the court has examined the information available on the court's data base and discovered the following:
• Regarding the first nonpayment proceeding, as stated above, Petitioner's attorney affirms that, due to "an unintentional typographical error", Petitioner incorrectly referenced the index number in the Notice of Termination and Petition as "26358/13" instead of "2638/13". (Affirmation in Opposition at ¶ 8.) The court's database shows, however, that the case assigned to index number LT-2638-13/BX, like the one assigned to LT-26358-13/BX, is irrelevant to this proceeding. It does not involve either Petitioner or Respondent and bears the caption "Tilden Towers Housing Co. Section II, Inc. v Harold Payne, Jr."
• Regarding the third nonpayment proceeding, while Petitioner's opposition papers do not make the same claim of "an unintentional typographical error", for reasons that it does not explain Petitioner discusses the case by reference to index number "33767/15", not "47535/15" as stated in the Notice of Termination and Petition. Petitioner's managing agent alleges that "Respondent never answered and a judgment was issued upon the
>Respondent's default." Affidavit in Opposition at ¶ 5. Further, because the arrears were paid before the warrant of eviction issued, "For that reason I had my attorneys discontinue the case." Id. at ¶¶ 5-6. However, the court's database shows that the case assigned to index number LT-33767-15/BX does not involve either of the parties to this proceeding and bears the caption "2427 Webster Realty LLC v Martina Perez".Further, in the case assigned index number LT-47535-15/BX, as correctly described by Respondent's attorney, there was no activity after the case was filed. DISCUSSION
And, contrary to the statement of Petitioner's managing agent, the court did not issue a judgment under index number LT-33767-15/BX and there was no activity whatsoever after the case was filed.
Section 2524.3 of the New York City Rent Stabilization Code ("RSC") is entitled "Proceedings for eviction—wrongful acts of tenant". This section of the Code authorizes a landlord to bring a holdover eviction proceeding against a Rent Stabilized tenant, after service of the predicate notice required by RSC § 2524.2, who is alleged to have committed one or more of the wrongful acts listed in subsections (a) through (h). See, generally, Domen Holding Co v Aranovich (1 NY3d 117, 123, 802 NE2d 135, 138, 769 NYS2d 785, 788 [2003]). The subsections that are relevant herein are subsections (a) and (b): Petitioner exclusively references subsection (a) in its Petition (in the second ¶ 1 ) and exclusively references subsection (b) in the first paragraph of its termination notice.
See fn 1, supra.
Subsection (a) covers violations of a substantial obligation of the tenancy which includes, "A history of repeated nonpayment proceedings brought to collect chronically late rental payments." Adam's Tower Ltd Partnership v Richter (186 Misc 2d 620, 717 NYS2d 825 [App Term 1st Dep't 2000]) (granting summary judgment to landlord where the uncontradicted evidence established that "after years of consistently late payments, landlord was required to commence nine nonpayment proceedings" during a period of three years and four months and there was "no suggestion that rent was withheld because of uninhabitable conditions" but rather the tenants acknowledged that "they have experienced financial difficulties attributable to expenses occasioned by their son's medical condition"). Compare Chama Holding Corp v Taylor ( 37 Misc 3d 70, 955 NYS2d 464 [App Term 1st Dep't 2012]) (affirming lower court's holding that landlord failed to establish "a pattern of unjustified rent defaults" sufficient to constitute a violation of a substantial obligation of the tenancy under RSC § 2524.3[a] where, of the four proceedings commenced in a two-year period, two "were shown to have arisen from legitimate disputes as to the propriety of the monthly rent sought by landlord and the existence of rent impairing conditions" and the other two had been instituted more than three and a half years prior to the service of the holdover petition).
While proceedings brought under subsection (a) generally must be preceded by a ten-day written notice of an opportunity to cure, decisional law holds that such a notice is not required if the factual basis for the proceeding is chronic rent delinquency. 326-330 E 35th St Assoc v Sofizade (191 Misc 2d 329, 741 NYS2d 380 [App Term 1st Dep't 2002]); Adam's Tower Ltd Partnership v Richter, supra.
Subsection (b) applies where the claim is that the tenant "is committing or permitting a nuisance", which requires the petitioner to "establish that respondent's conduct 'interfere[d] with the use or enjoyment' of their property". Sharp v Norwood (89 NY2d 1068, 1069, 681 NE2d 1280, 1281, 659 NYS2d 834, 835 [1997]). A landlord's claim of having suffered in that "they were repeatedly forced to institute nonpayment proceedings and to serve rent demands on respondent to collect chronically late rental payments", without other "aggravating circumstances", is insufficient to support a nuisance cause of action. Id. As explained by the Appellate Division, First Department, to evict a tenant for chronic late payment of rent as a nuisance, "the landlord must show that it was compelled to bring numerous non-payment proceedings within a relatively short period and that the tenant's non-payment was willful, unjustified, without explanation, or accompanied by an intent to harass the landlord." 25th Realty Associates v Griggs (150 AD2d 155, 540 NYS2d 434 [1st Dep't 1989])(eleven nonpayment proceedings brought in six years sufficient to state a cause of action). See also Sharp v Norwood (223 AD2d 6, 643 NYS2d 39 [1st Dep't 1996], aff'd, 89 NY2d 1068, 681 NE2d 1280, 1281, 659 NYS2d 834, 835 [1997])("The common thread which runs through these cases is that after reviewing the totality of the circumstances presented, a nuisance has been found to have been committed if it can be determined that the tenant chronically, and unjustifiably, refused to pay the rent when due and that as a result, the landlord was compelled to bring numerous nonpayment proceedings within a relatively short period of time."). Further, "the number of nonpayment actions commenced is relevant only in the context of the entire circumstances surrounding the alleged withholding of rent". Greene v Stone (160 AD2d 367, 368, 553 NYS2d 421 [1st Dep't 1990])(remanding nuisance holdover proceeding based on chronic nonpayment of rent to the Civil Court, which had dismissed the case at trial after landlord's prima facie case establishing three nonpayment proceedings in the previous three years).
As mentioned above, eviction proceedings under RSC § 2524.3 may only be commenced after service of the notice required by RSC § 2524.2. Such a termination notice must state both (1) "the ground under section 2524.3 or 2524.4 upon which the owner relies for removal or eviction of the tenant" and (2) "the facts necessary to establish the existence of such ground". New York State courts evaluate the sufficiency of predicate notices in eviction proceedings based on a standard of reasonableness "in view of all attendant circumstances". Oxford Towers Co, LLC v Leites (41 AD3d 144, 837 NYS2d 131 [1st Dep't 2007]); Hughes v Lenox Hill Hospital (226 AD2d 4, 17, 651 NYS2d 418, 427 [1st Dep't 1996], appeal dismissed, 90 NY2d 829, 660 NYS2d 552 [1997]). The notice must "provide the necessary additional information to enable the tenant respondent to frame a defense to meet the tests of reasonableness and due process." Jewish Theological Seminary of America v Fitzer (258 AD2d 337, 338, 685 NYS2d 215 [1st Dep't 1999]). An adequate predicate notice is a required condition precedent; if the notice of termination is insufficient, the proceeding must be dismissed. Chinatown Apts Inc v Chu Cho Lam (51 NY2d 786, 412 NE2d 1312, 433 NYS2d 86 [1980]); Jewish Theological Seminary of America v Fitzer; supra; London Terrace Gardens, LP v Heller (40 Misc 3d 135[A], 975 NYS2d 710 [App Term 1st Dep't 2009])(the facts in the predicate notice must be pleaded with sufficient specificity so as "to discourage baseless eviction claims founded upon speculation and surmise, rather than concrete facts"); Carriage Court Inn, Inc v Rains (138 Misc 2d 444, 524 NYS2d 647 [Civ Ct NY Co 1988])(granting motion to dismiss holdover petition based upon a vague notice of termination, which may not be amended to operate retroactively).
On this motion to dismiss under CPLR 3211, the court has construed the Petition liberally, drawn all reasonable inferences in favor of the nonmoving party and considered the affidavit of Petitioner's managing agent as well as the documentary evidence submitted by both sides. Leon v Martinez (84 NY2d 83, 87-88, 614 NYS2d 972, 974 [1994]). Having done so, the court finds that dismissal of the Petition is warranted for several reasons.
First, there is a material and irreconcilable discrepancy between the Code citation in the predicate notice and the Code citation in the Petition, such that it is not clear on what legal ground or grounds Petitioner bases this case. Petitioner asserted in its predicate notice that it was terminating Respondent's tenancy based upon her "willful, repeated, and chronic nonpayment and late payment of rent pursuant to Section 2524.3(b) of the Rent Stabilization Code of New York City." [Emphasis added.] As stated above, this Code subsection applies when a landlord seeks to evict a tenant who "is committing or permitting a nuisance". If in fact this is the basis for the within proceeding, Petitioner has failed to state a cause of action as the notice of termination does not allege sufficient facts to support a nuisance claim under RSC § 2524.3(b). Sharp v Norwood, supra. However, the Petition itself cites to Code subsection 2524.3(a) , not 2524.3(b).
Compounding the confusion, neither the predicate notice nor the Petition uses the word "nuisance" or the phrase "violating a substantial obligation of his or her tenancy". As discussed by the Court of Appeals in Sharp v Norwood, supra, the remedies offered by subsections (a) and (b) of RSC § 2524.3 are distinct, and different standards of proof are required for each. Certainly, a landlord may proceed against a tenant on one or both of these grounds. Rockaway One Co v Califf (194 Misc 2d 191, 751 NYS2d 670 [App Term 2nd Dep't 2002]). See also, e.g., Momart Discount Store Ltd v Rossi (2016 NY Misc LEXIS 4082, 2016 NY Slip Op 32165[U][Civ Ct NY Co 2016])("alternative pleading is permitted so long as it is made with specificity"). However, the landlord must be clear as to what ground or grounds are the basis for the proceeding. Where the predicate notice and petition are inconsistent with each other and the landlord has not made clear the basis for the proceeding in either document, dismissal is warranted. Chinatown Apartments v Chu Cho Lam, supra; see, also, e.g., 156-158 Second Ave, LLC v Delfino (18 Misc 3d 1144[A], 859 NYS2d 896 [Civ Ct NY Co 2008]); Homestead Equities v Washington (176 Misc 2d 459, 672 NYS2d 980 [Civ Ct Kings Co 1998]); Carriage Court Inn, Inc v Rains, supra.
Second, there are so many other inconsistent and erroneous statements in the termination notice as to render it an unreliable and impermissible basis for the Petition. Petitioner claims in its termination notice that it brought "numerous" nonpayment proceedings and that the court issued "numerous" judgments against Respondent. However, that notice and Petitioner's opposition papers belie these claims: Petitioner has provided the correct index number to only one nonpayment proceeding which resulted in a judgment against Respondent and a second one which was filed but abandoned without any activity following its filing. The Merriam-Webster dictionary defines the word "numerous" to mean: "consisting of a large number". Merriam-Webster.com. See also, e.g., Oxford Dictionaries.com ("great in number; many"); Dictionary.com ("very many; being or existing in great quantity"); Vocabulary.com ("amounting to a large indefinite number"). Disregarding for the moment the fact that one of the three index numbers was cited incorrectly in Petitioner's predicate notice and Petition, three nonpayment proceedings - and just one judgment - are not large or indefinite numbers, rendering improper Petitioner's use of the word "numerous". Petitioner also states that Respondent "failed to interpose any defense" to any of the nonpayment proceedings. This is a misstatement, as is clear from Respondent's Answer in the second proceeding (copy attached to Respondent's moving papers as Exhibit F): Respondent certainly did interpose a defense, specifically breach of the warranty of habitability. An adequate predicate notice is a required condition precedent and these misstatements render the notice of termination insufficient, warranting dismissal of the proceeding. Chinatown Apts Inc v Chu Cho Lam, supra; Jewish Theological Seminary of America v Fitzer; supra; London Terrace Gardens, LP v Heller, supra; Carriage Court Inn, Inc v Rains, supra.
This defense is addressed in all three of the Stipulations of Settlement that the parties entered into during the course of that proceeding (Exhibits G, J and M to Respondent's moving papers), with conditions to be repaired and access dates listed in each. Further, in her affidavit in support of her first Order to Show Cause in that proceeding (Exhibit I) Respondent not only mentioned that no repairs had been done but also referred to a prior proceeding, noting that "this is the 2nd court case — still no repair — apartment in horrible conditions." It can reasonably be inferred from this statement that Respondent had raised her need for repairs as a defense in the first nonpayment proceeding, the one which Petitioner provided an incorrect index number for in its predicate notice and Petition as well as in its opposition papers.
Third, there is authority for disregarding as a basis for this holdover each of the three nonpayment proceedings which Petitioner refers to in its termination notice and Petition:
(1) With regard to the 2013 case, Petitioner attempts to minimize its mistake by referring to the incorrect index number it included in both its predicate notice and Petition as "an unintentional typographical error." (Affirmation in Opposition at ¶ 8.) Petitioner then compounds its own error by making a further error in its opposition papers by claiming that the correct index number is 2638/13 - which it is not - and failing to provide copies of any documents pertinent to that case. In any event, since neither Respondent nor the court can be expected to locate and review the court file without a correct index number, this defect in the notice must be considered material. The court in Crotona Park Housing, LP v Joseph (45 Misc 3d 1202[A], 998 NYS2d 305 [Civ Ct Bx Co 2014]), faced this same issue, as the landlord in that chronic rent delinquency holdover proceeding claimed to have "mistakenly transposed some of the digits of the Index Numbers" of the nonpayment proceedings listed in the predicate notice. The landlord moved for leave to amend the defects in its predicate notice and the court denied that motion, finding that "the mistaken index numbers in the Notice of Default cannot be amended, regardless of the de minimis nature of the defect," citing Chinatown Apartments v Chu Cho Lam, supra. Similarly, here, Petitioner is barred from relying on the twice misidentified nonpayment proceeding as a basis for this proceeding.
(2) With regard to the 2014 case, it is clear from the court file documentsattached to Respondent's moving papers that she asserted an affirmative defense based on conditions needing repair, which Petitioner was then required to address on specified dates listed in three so-ordered Stipulations of Settlement (Exhibits G, J and M to Respondent's moving papers). In Mins Ct Hous Co Inc v Wright (42 Misc 3d 1214[A], 984 NYS2d 633 [Civ Ct Bx Co 2014]), the court granted the tenant's motion to dismiss a chronic rent delinquency holdover brought on the basis of alleged violation of a substantial obligation of the tenancy (not nuisance). After barring nine out of twelve legal proceedings from consideration under the Statute of Limitations, the court noted that the tenant had asserted the need for repairs as an affirmative defense in her answer to one of the remaining three proceedings and that the so-ordered Stipulation settling that case provided payment and repairs schedules. In the second of those three cases the tenant raised a
defense of payment and the initial settlement agreement required the landlord to make repairs and the tenant to provide proof of missing money order payments. The court concluded that these two proceedings therefore "were not so unjustified as to warrant a lease violation finding." Further, even counting that second case, the court concluded that, "Tenant has established that Landlord has failed to allege enough frequency and number of prior proceedings to show that Tenant has substantially violated a material obligation of her 15-year tenancy." Cf. Terrilee 97th Street LLC v Alaharzi (53 Misc 3d 151[A], 2016 NY Slip Op 51684[U] [App Term 1st Dep't 2016])(in affirming dismissal after trial court held that where, "bona fide claims are shown to exist that an apartment is in need of repairs, precipitating the withholding of rent, a holdover petition based upon chronic nonpayment will not lie"); Chama Holding Corp v Taylor (37 Misc 3d 70, 955 NYS2d 464 [App Term 1st Dep't 2012])(in affirming denial of summary judgment to landlord, with regard to two of the four underlying nonpayment proceedings the court noted that, "The bona fide claims raised by tenant in the two contested nonpayment proceedings as to the rental amounts demanded and/or the habitability of the apartment premises, precipitating the withholding of rent, preclude an eviction remedy based upon chronic nonpayment"); Crotona Park Housing, LP v Joseph (45 Misc 3d 1202[A], 998 NYS2d 305 [Civ Ct Bx Co 2014])(finding that two of the underlying nonpayment proceedings could not serve as a proper predicate for a chronic rent delinquency holdover because they "were either discontinued by Landlord or settled by a Stipulation of Settlement requiring repairs").For all of the reasons stated above, Petitioner has failed to state a cause of action and this proceeding is dismissed, without prejudice.
(3) With regard to the 2015 case which Petitioner filed and then abandoned, in a chronic rent delinquency holdover proceeding a landlord cannot rely upon nonpayment proceedings which were not properly commenced or pursued, or that were discontinued. Chama Holding Corp v Taylor, supra; 127th St Cluster, LP v Brown (24 Misc 3d 1203[A], 889 NYS2d 883 [Civ Ct NY Co 2009]).
The court can take judicial notice of these files, and further can consider the court file documents Respondent submitted in support of her motion under CPLR 3211(a)(1).
The court relies here on the case information attached to the index number Petitioner cited in its Notice of Termination and Petition (47535/15), not on the case information attached to the index number Petitioner discusses — and misrepresents - in its opposition papers (33767/15).
Certainly, Respondent's rent payment history as reflected in Petitioner's "Tenant Statement" is troubling, and if that history continues to repeat itself Respondent may very well find herself facing eviction due to chronic rent delinquency in a future holdover proceeding. However, at this juncture, for the reasons stated above, the court must grant Respondent's motion to dismiss. The alternative relief sought of leave to file an answer is denied as moot.
Also troubling is the lack of accuracy and attention to detail reflected in Petitioner's opposition papers.
This constitutes the Decision and Order of this Court. Copies of this Decision and Order will be made available to the respective parties' counsel in the courthouse. _________________________ Diane E. Lutwak, Hsg. Ct. J. Dated: March 8, 2017 Bronx, New York,