Opinion
08-07-2015
GRAHAM COURT OWNERS CORP., Petitioner–Landlord–Appellant, v. Kyle TAYLOR, Respondent–Tenant–Respondent, and Nichelle E. Williams, Simone C. Williams, Jermaine S. Claire, “John Doe” and “Jane Doe,” Respondents.
Tenenbaum Berger & Shivers, LLP, Brooklyn (Damien Bernache of counsel), for appellant. Bierman & Associates, New York City (Mark H. Bierman of counsel), for respondent.
Tenenbaum Berger & Shivers, LLP, Brooklyn (Damien Bernache of counsel), for appellant.
Bierman & Associates, New York City (Mark H. Bierman of counsel), for respondent.
PRESENT: SCHOENFELD, J.P., HUNTER, JR., LING–COHAN, JJ.
Opinion
PER CURIAM.
Landlord appeals from an order of the Civil Court of the City of New York, New York County (Phyllis K. Saxe, J.), dated December 17, 2013, which denied its motion, inter alia, to strike tenant's defenses and counterclaim, and granted tenant's cross motion for summary judgment dismissing the petition in a holdover summary proceeding. Order (Phyllis K. Saxe, J.), dated December 17, 2013, affirmed, with $10 costs.
This summary holdover proceeding was properly dismissed on tenant's motion. Landlord's failure to serve a notice to cure as required by section 2524.3(a) of the Rent Stabilization Code was fatal to its possessory cause of action based on allegations that the tenant illegally sublet the apartment premises (see Hudson Assoc. v. Benoit, 226 A.D.2d 196, 640 N.Y.S.2d 540 [1996] ).
We reject, as did Civil Court, landlord's claim that Rent Stabilization Code (9 NYCRR) §§ 2524.3(h), and 2526.6(c) and (f), permit it to terminate the tenancy without service of a notice to cure in this case, where it is alleged that the tenant sublet the apartment for more than two out of four years. A tenant who sublets a stabilized apartment without the landlord's consent breaches a substantial obligation of the tenancy (see Real Property Law § 226–b [5 ]; RSC § 2525.6[a]; Cutler v. North Shore Towers Assoc., 125 A.D.2d 532, 509 N.Y.S.2d 609 [1986] ), for which a holdover proceeding will lie only after the tenant has failed to comply with a 10–day notice to cure (see Rent Stabilization Code [9 NYCRR] § 2524.3[a] ). The mere allegation that the sublet exceeded the two-year limit set forth in the Code (see RSC § 2526.6[c] ) does not excuse the service of a notice to cure. Unlike situations involving rent gouging or profiteering in relation to a sublet, conduct which undermines the integrity of the rent stabilization system and constitutes an incurable ground for eviction (see Matter of 151–155 Atl. Ave. v. Pendry, 308 A.D.2d 543, 764 N.Y.S.2d 852 [2003] ; BLF Realty Holding Corp. v. Kasher, 299 A.D.2d 87, 91, 747 N.Y.S.2d 457 [2002], lv. dismissed 100 N.Y.2d 535, 762 N.Y.S.2d 876, 793 N.E.2d 413 [2003] ; Continental Towers Ltd. Partnership v. Freuman, 128 Misc.2d 680, 494 N.Y.S.2d 595 [1985] ), the extended duration of the sublease is not, without more, a factor sufficient to deprive the tenant of the right to cure.