Opinion
L & T 66432/2018
11-19-2019
M. 1695 G.C. LLC, Petitioner, v. Arturo PEREZ, "John Doe," "Jane Doe,", Respondents.
Lazarus Karp LLP — for the Petitioner Mobilization for Justice, by Alberto Gonzalez, Esq. — for the Respondent
Lazarus Karp LLP — for the Petitioner
Mobilization for Justice, by Alberto Gonzalez, Esq. — for the Respondent
Karen May Bacdayan, J. The decision and order on this motion is as follows:
In this nuisance holdover involving a long-term rent-stabilized tenant, respondent Arturo Perez ("Respondent") moves, inter alia , to dismiss the proceeding for Petitioner's failure to serve a notice to cure upon him prior to commencing this proceeding as required by the parties' lease.
Alternatively, the Respondent requests this court to dismiss the petition for failure to state a cause of action, or, in the event the dismissal relief is denied, for leave to conduct discovery.
The Parties' Arguments
Respondent moves to dismiss this proceeding pursuant to CPLR 3211 (a) (7) on the basis that Petitioner did not serve Respondent with a notice to cure prior to commencing this proceeding. There is no dispute that the landlord, M. 1695 G.C. LLC ("Petitioner"), did not serve a notice to cure the conduct alleged prior to the commencement of the proceeding; it served only a notice informing Respondent of its election to terminate Respondent's tenancy effective December 11, 2018. The termination notice alleges a series of objectionable behaviors occurring between September 17, 2018 and October 27, 2018 when Respondent engaged in the vandalism of the building superintendent's automobile and the physical assault of both the superintendent and his wife. Perhaps anticipating Respondent's present arguments, the termination notice states that because the "course of conduct is incapable of any meaningful ‘cure,’ ... no notice to cure [was] served upon [Respondent]." The termination notice alleges that it was served, in part, pursuant to article 17 of the lease agreement.
Respondent argues that the lease agreement between the parties' respective predecessors-in-interest required service of a cure notice prior to the termination notice. Relevant to the Respondent's argument are both article 12 and article 17 of the of the lease. Article 12 defines "objectionable conduct" and creates for the tenant an obligation to refrain from engaging in it. It reads:
"As a tenant in the building, you will not engage in objectionable conduct. Objectionable conduct means behavior which makes or will make the apartment or the building less fit to live in for you or other occupants. It also means anything which interferes with the rights of others to properly and peacefully enjoy their apartments, or causes conditions that are dangerous, hazardous, unsanitary and detrimental to other tenants in the building. Objectionable conduct by you gives the owner the right to end this lease."
(Respondent's exhibit I at 12 [internal capitalization omitted].) Article 17 of the lease — entitled "Default" — sets out procedure for lease termination in instances where the tenant "fail[s] to carry out any agreement or provision of the Lease," or "behaves in an objectionable manner." In relevant part, it provides:
"If [tenant does] default, owner may serve [tenant] with a written notice to stop or correct the specified default within 10 days. [Tenant] must then either stop or correct the default within 10 days .... If [tenant does] not stop or begin to correct a default within 10 days, owner may give [tenant] a second notice that this lease will end. [Tenant] must then move out of the apartment."
(Respondent's exhibit I at 12 [internal capitalization omitted; emphasis added].)
In its opposition, Petitioner argues that the use of the word "may" indicates that service of a notice to cure is "non-mandatory" and, therefore, that article 17 of the lease permits Petitioner to serve a notice to cure but does "not impose an obligation upon the Petitioner" to do so. Alternatively, it argues that the basis for the termination of Respondent's tenancy was not violation of the objectionable conduct clause of the lease agreement, but instead a violation of section 2524.3 (b) of the Rent Stabilization Code allowing a termination of tenancy in the instance of nuisance.
For the reasons set forth below, Respondent's motion is granted, and the petition is dismissed.
Discussion
Failure to serve a proper predicate notice required by a lease is a fatal flaw to a summary proceeding requiring its dismissal. ( Chinatown Apts. Inc. v. Chu Cho Lam , 51 N.Y.2d 786, 433 N.Y.S.2d 86, 412 N.E.2d 1312 [1980].) This is true even where the lease terms impose stricter notice requirements than those contained in a relevant statute or regulation. (Waring v. Barker Co. v. Santiago , 1998 N.Y. Misc. LEXIS 749 [App. Term, 1st Dept. 1998]; Hendrickson v. Lexington Oil Co. , 41 A.D.2d 672, 340 N.Y.S.2d 963 [2d Dept. 1973] [dismissing a nonpayment proceeding for failure to serve a ten-day demand for rent pursuant to the lease]; 221 East 10th St., Inc. v. Walker , 1992 NY Misc Lexis 717 [Civ Ct, NY County 1992].)
In the context of chronic nonpayment of rent holdovers, the appellate courts have held that service of a notice to cure is unnecessary where "the ‘cumulative pattern of [a] tenant['s] course of conduct’ is incapable of any meaningful cure." ( 326-330 E. 35th St. Assoc. v. Sofizade , 191 Misc. 2d 329, 741 N.Y.S.2d 380 [App. Term, 1st Dept. 2002] quoting Adam's Tower Ltd. Partnership v. Richter , 186 Misc. 2d 620, 622, 717 N.Y.S.2d 825 [App. Term, 1st Dept. 2000].) The appellate courts in this department have applied this rule both where a cure notice is required by statute (see 974 Realty Corp. v. Ledford , 9 Misc. 2d 240, 171 N.Y.S.2d 908 [App. Term, 1st Dept. 1957] ), as well by the terms of a lease. ( Herald Towers LLC v. Perry , 2003 N.Y. Slip Op. 50564[U], 2003 WL 355663 [App. Term, 1st Dept. 2003] revg 190 Misc. 2d 500, 738 N.Y.S.2d 814 [Civ. Ct., N.Y. County 2001] ; 326-330 E. 35th St. Assoc. v. Sofizade , 191 Misc. 2d at 331-32, 741 N.Y.S.2d 380.) "The fact that a lease or statute provides time for a cure does not necessarily imply that a means or method to cure must exist in every case." ( Adam's Tower , 186 Misc. 2d at 622, 717 N.Y.S.2d 825 quoting National Shoes, Inc. v. Annex Camera & Electronics, Inc. , 114 Misc. 2d 751, 452 N.Y.S.2d 537 [Civ. Ct., N.Y. County 1982].)
Accordingly, deciding Respondent's motion requires the court to answer two questions. The first is whether the terms of the lease require service of a notice to cure. If it does, the court must decide whether the behavior alleged in the termination notice is incapable of any meaningful cure consequently abrogating that requirement.
The Terms of the Lease
Although the Rent Stabilization Code would not require service of a notice to cure prior to the commencement of this nuisance holdover proceeding, the parties' lease does. The Petitioner's contrary arguments are not availing.
The lease's use of the word "may" before "serve [tenant] with a written notice to stop or correct the specified default within 10 days" does not empower the Petitioner with the choice as to whether service of a cure notice is required before the termination; it merely empowers the Petitioner with the choice as to whether to begin the process of termination of the tenancy. If the same sentence said "must," for example, as Petitioner acknowledges would indicate a required act, it would impose upon the Petitioner the absolute obligation to terminate the tenancy on any failure to carry out a provision or the lease or instance of objectionable behavior. Certainly, whether to do so is a matter within Petitioner's prerogative. Petitioner's argument regarding what the "may" language permits is further belied by the fact that the same verb — "may" — is employed in the lease before the requirement to serve a notice to terminate. Only where the Petitioner has served a notice to cure behavior that went uncorrected "may" the Petitioner resort to serving a termination notice. The terms of the lease make the cure notice a condition precedent to service of the termination notice.
This result has been reached previously by courts interpreting the identical language contained in the form lease here. (See e.g. 2301 First Ave. L.P. v. Ortiz , 27 HCR 368A [Civ Ct, NY County, No. 69366/97, J. Friedman, Aug. 4, 1997]; Levister Redev. Co., LLC v. May , 32 HCR 572B [Mount Vernon City Ct, No. 342/04, J. Edwards, 2004].)
Petitioner's remaining argument that the notice to cure is not necessary because the termination herein is not based upon an alleged violation of the lease but instead premised on a violation of the Rent Stabilization Code's prohibition of "nuisance" behavior (see Rent Stabilization Code [9 NYCRR] § 2524.3 [b] ) is also without merit, where, as here, the notice of termination on its face specifically states that it is made pursuant to article 17 of the lease. Moreover, as defined by the Court of Appeals, a nuisance is a "a pattern of continuity or recurrence of objectionable conduct ." ( Domen Holding Co. v. Aranovich , 1 N.Y.3d 117, 124, 769 N.Y.S.2d 785, 802 N.E.2d 135 [2003].) A nuisance allegation necessarily involves an allegation of objectionable conduct, triggering article 17 of the lease agreement which Petitioner implicitly acknowledges in the notice of termination. (See Waring v. Barker Co. v. Santiago , 1998 N.Y. Misc. LEXIS 749 [App. Term, 1st Dept. 1998].)
In fact, the article 12 definition of objectionable conduct strongly resemble the language of section 2524.3 (b) of the Rent Stabilization Code is, which authorizes eviction where a tenant "is committing or permitting a nuisance in such housing accommodation or the building containing such housing accommodation; or is maliciously, or by reason of gross negligence, substantially damaging the housing accommodation; or the tenant engages in a persistent and continuing course of conduct evidencing an unwarrantable, unreasonable or unlawful use of the property to the annoyance, inconvenience, discomfort or damage of others, the primary purpose of which is intended to harass the owner or other tenants or occupants of the same or an adjacent building or structure by interfering substantially with their comfort or safety."
The Nature of the Alleged Conduct
In every above-cited case standing for the proposition that a cure notice is unnecessary where the alleged conduct is incapable of any meaningful cure, the issue before the court was chronic nonpayment of rent. Those cases are dissimilar from the facts here in that they necessarily involve patterns of conduct over an extended period of years — as opposed to the small number of weeks alleged here. (See e.g. 326-330 E. 35th St. Assoc. v. Sofizade , 191 Misc. 2d 329, 741 N.Y.S.2d 380 [finding notice to cure not required where landlord's chronic nonpayment claim was based 12 nonpayment proceedings over a 34-month period].)
Although it was not cited by the Petitioner in either its termination notice or its initial opposition papers, the court can locate only one case where this principle was applied to a nuisance cause of action outside of the context of chronic nonpayment. In Strata Realty Corp. v. Pena , the court found that a cure notice was not required despite the language of the lease where the tenant had created a nuisance "over a substantial period [of time]" by "repeatedly filing complaints against the landlord [with government agencies] relating to conditions in the apartment, resulting in the placement of violations, and then consistently refusing to allow landlord to make necessary repairs." ( 57 Misc. 3d 156[A], 2017 N.Y. Slip Op. 51646[U], 2017 WL 6006018 [App. Term, 1st Dept. 2017] affd. as mod 166 A.D.3d 401, 86 N.Y.S.3d 74 [2018].) In affirming that portion of the Appellate Term decision, the Appellate Division wrote that the tenant's "refusal to permit petitioner to correct violations ... had the potential to compromise the health and safety of the building's residents." ( Strata Realty Corp. v. Pena , 166 A.D.3d at 401, 86 N.Y.S.3d 74.) In contrast, the conduct alleged here took place over the course over a relatively short period of time (40 days) and involved only the building superintendent and his wife. At oral argument, Petitioner argued that the type of behavior it alleges to have occurred here is by its nature incapable of cure but has not supported this position with any decisional law. Violent, dangerous, and even illegal behavior is not per se non-curable. (See e.g. 2301 First Ave. L.P. v. Ortiz , 27 HCR 368A [holding that the lease required a notice to cure an allegation of nuisance based on use of the premises for the sale of illegal drugs and prostitution]; 221 E. 10th St., Inc. v. Walker , 1992 NY Misc LEXIS 717 [Civ Ct, NY County 1992] [holding that the terms of the lease required service of a cure notice prior to termination where the landlord alleged the tenant was "using or permitting his apartment to be [used] to sell and distribut[e] illegal drugs"]; Andrews-Zuck Realty v. Warner , 23 HCR 601A [Civ Ct, Bronx County, J. Thomas, Oct. 11, 1995] [dismissing a nuisance proceeding for failure to serve a notice to cure required by the lease where the respondent was alleged to have engaged in a number of dangerous and illegal behaviors, including the throwing of belongings out of the windows and onto public spaces and assaulting other residents with screaming threats].)
Initially, neither party cited Strata Realty Corp. v. Pena , a controlling case in this department. The court requested supplemental briefing which was provided by the parties.
Accordingly, the court cannot hold here that the alleged behaviors were completely incapable of any meaningful cure. Although Petitioner has stated that alleged behavior caused its superintendent to resign from his position, in reaching its determination, the court cannot overlook the fact that the Petitioner has at no time alleged that this behavior has continued—or, ever before occurred—against any other member of its staff or resident of the subject building. The acts alleged are not at all like the appellate cases in the chronic nonpayment context or even to Strata Realty Corp. —all of which involve behaviors that took place over a substantial period of years and involved repeated acts. Although a person cannot "undo" an act of vandalism or assault, one can refrain from engaging in those behaviors in the future. This is the meaning of cure which the lease contemplates in allowing a tenant an opportunity to "stop ... the default within 10 days." (Respondent's exhibit I at 17 [emphasis added].)
Petitioner has also not ever disputed Respondent's contention that he has an otherwise "unblemished record." (Aff of Respondent at 8.)
Neither can the court overlook the fact that it was the Petitioner , by its predecessor, who adopted the terms of the form lease in question here and presented it to Respondent for execution. The court is thus bound to strictly construe these terms against Petitioner and any resolve any "uncertainty in the lease ... against the landlord." ( 151 W. Assoc. v. Printsiples Fabric Corp. , 61 N.Y.2d 732, 734, 472 N.Y.S.2d 909, 460 N.E.2d 1344 [1984].)
Conclusion
Accordingly, because Petitioner failed to serve a notice to cure in contravention of the requirements of the lease, it is hereby ORDERED that Respondent's motion to dismiss the proceeding for Petitioner's failure to provide him with the opportunity to cure as required by the lease is GRANTED. In view of this holding, the Court need not address the Respondent's remaining arguments.
This constitutes the decision and order of this court.