Opinion
Index No. LT-300037-21/QU
10-18-2021
JAMAICA AVENUE, LLC, Petitioner, v. H. CARPETS INC.; Amir "Doe"; "John" "Doe"; "Jane" "Doe," XYZ Corp, Respondent.
Petitioner's counsel: Novick Edelstein & Pomerantz PC, 733 Yonkers Avenue, Yonkers, NY 10704 Respondents: Pro se
Petitioner's counsel: Novick Edelstein & Pomerantz PC, 733 Yonkers Avenue, Yonkers, NY 10704
Respondents: Pro se
Wendy Changyong Li, J.
Papers
The following papers were read on Petitioner's motion for a judgment of possession and issuance of a warrant of eviction:
Papers Numbered
Petitioner's Notice of Motion dated May 26, 2021 ("Motion ") and electronically filed with the court on June 4, 2021.1
Background
In a notice of petition and petition ("Petition ") filed on January 6, 2021, Petitioner commenced a holdover proceeding against Respondents, alleging that "Respondents continue[d] in possession of the subject premises" and that the "term for which the said premises were rented by the Respondent-Tenant(s) ha[d] been terminated" (Petition at 1). Petitioner now moved for a judgment of possession and issuance of a warrant of eviction against Respondents. Respondents did not oppose the Motion. After four (4) separate adjournments by various courts, as a courtesy, this Court instructed Petitioner to perform additional service upon Respondents through phone call, email and personal service communicating the next court date. When Respondents failed to appear again on the next scheduled court date of October 4, 2021, the Motion was submitted on default.
Discussion and Decision
A tenant's continued possession of premises after expiration of the term without landlord's permission is a ground for removal of the tenant from possession (see RPAPL 711[1] ). "Every petition shall ... [s]tate the facts upon which the special proceeding is based" ( RPAPL 741 [4] ). In our instant matter, the Petition alleged that "the grounds of this proceeding [were] as follows: Tenant's term ha[d] been terminated pursuant to the Notice(s) annexed [thereto] and made a part [thereto], by reason of the grounds asserted therein" (Petition at 2). The Thirty (30) Day Notice of Termination ("Notice of Termination ") annexed to the Petition provided: "PLEASE TAKE FURTHER NOTICE that good cause exist[ed] to terminate [tenants'] tenancy. Good cause to terminate [tenants'] tenancy exists because" (Notice of Termination at 1). This Court notes that nothing appeared after the word "because" in such notice (Id. ).
Service of a proper notice of termination is a condition precedent to terminating the tenancy ( Chinatown Apts. v Chu Cho Lam , 51 NY2d 786, 788 [1980] ). "A valid predicate notice is a condition precedent to a holdover proceeding" ( Jamison v Jamison , 55 Misc 3d 139[A], 2017 NY Slip Op 50557[U] * 2 [App Term 2d Dept 2017]). In its Petition, Petitioner stated that Respondents were the "month to month tenant[s]" (Petition at 1), however, did not provide any evidence (for example, copy of lease, owner's affidavits, etc.) to support such statement. In support of its Motion, an affidavit sworn May 18, 2021 by Leo, "owner for the Petitioner," only established that Respondents were in possession without Petitioner's consent, but did not establish the reasons for terminating Respondents' tenancy (Leo Affidavit at 1). Since the grounds for terminating Respondents' tenancy in the Petition referred to the Notice of Termination, which failed to set forth any grounds for terminating the tenancy, the Petition failed to state the facts that form the basis of the proceeding ( Chinatown Apts. v Chu Cho Lam , 51 NY2d at 788 ; Hollis Partners, LLC v Artis , 73 Misc 3d 128[A], 2021 NY Slip Op 50888[U] *2 [App Term 2d Dept 2021]; 287 Realty v Livathinos , 38 Misc 3d 146[A], 2013 NY Slip Op 50308[U] *2-3 [App Term 2d Dept 2013], see Jamison v Jamison , 2017 NY Slip Op 50557[U] * 2).
Order
Accordingly, it is
ORDERED that Petitioner's Motion for a judgment of possession and issuance of warrants of eviction is denied without prejudice.
This constitutes the court's Decision and Order.