1240 Sheva Rlty Assoc. v. Serrano

Citation2023 NY Slip Op 31022 (U)
Decision Date14 March 2023
Docket NumberL&T Index No. 300363/21,Motion Seq. No. 1
Parties1240 SHEVA RLTY ASSOC., LLC, Petitioner, v. JAIME SERRANO, Respondent,
CourtNew York Civil Court


2023 NY Slip Op 31022(U)

1240 SHEVA RLTY ASSOC., LLC, Petitioner,

JAIME SERRANO, Respondent,

“JOHN DOE;” “JANE DOE” Respondents-Undertenants.

L&T Index No. 300363/21, Motion Seq. No. 1

Civil Court of the City of New York, Bronx County

March 14, 2023

Unpublished Opinion





Recitation, as required by CPLR § 2219(a), of the papers considered in the review of the order to show cause by Respondent Jaime Serrano:



Notice of Motion; Memorandum of Law in Support of Motion; Affirmation in Support; and Exhibits A through M ………………..…..

NYSCEF Doc # 11- 14

Affirmation in Opposition; and Exhibits 1 and 2 ………………….…...

NYSCEF Doc # 15 - 17

Memorandum of Law in Further Support of Motion ……………..…...

NYSCEF Doc # 18

After oral argument and upon the foregoing cited papers, the decision and order on this motion is as follows:

1240 Sheva Rlty Assoc., LLC ("Petitioner") commenced this holdover proceeding against Jaime Serrano ("Respondent")[1] in mid-February 2021, seeking his eviction from the rent


stabilized apartment that is the subject of this proceeding. Within a "7 Day Notice of Termination - Nuisance," (hereinafter "notice of termination") that serves as the predicate notice to this proceeding and is incorporated into the petition, Petitioner alleges that Respondent should be evicted, pursuant to RSC § 2524.3(b), because he has allegedly created a nuisance at the subject premises; pursuant to RSC § 2524.3(d), because he is using the premises for immoral or illegal purposes; and pursuant to RPAPL § 711(5) and RPAPL § 715(1), based on his alleged use of the premises for illegal purposes.

The notice of termination recites the factual allegations that are the basis of this proceeding listing various criminal offenses with which Respondent was charged, and various items found in the apartment upon a search by the New York Police Department ("NYPD"). Also, annexed to the petition were various other documents including a request by the Bronx County Office of the District Attorney that Petitioner commence an eviction proceeding against Respondent, the search of the apartment by the NYPD, and the criminal charges filed against Respondent (NYSCEF Doc. No. 1, pg. 7 - 73).

Petitioner has not contested Respondent's assertion that all the criminal charges against him have been resolved, with four of the charges dismissed and three of the charges settled with Respondent pleading guilty to a disorderly conduct violation. Also, Petitioner does not dispute that the records related to the criminal charges that were filed against Respondent have been sealed pursuant to either CPL § 160.50 or CPL § 160.55.

In this motion, Respondent seeks an order dismissing this proceeding, pursuant to CPLR 3211(a)(7), for Petitioner's failure to state a cause of action or, in the alternative, striking any reference to sealed records contained in the pleadings and record and precluding Petitioner from


introducing any evidence based on sealed records. Additionally, if the proceeding is not dismissed, Respondent seeks an order, pursuant to CPLR 3012, granting leave to file a late answer. Petitioner opposes all the relief sought by Respondent.


Dismissal for Failure to State a Cause of Action

In reviewing a motion, pursuant to CPLR 3211(a)(7), a determination must be made whether the factual allegations within the petition state a legally cognizable cause of action. Leon v. Martinez, 84 N.Y.2d 83 (1994); Clarke v. Laidlaw Transit, Inc., 125 A.D.3d 920 (2d Dept 2015); Fishberger v. Voss, 51 A.D.3d 627 (2d Dept 2008). In performing this review, the court must afford the petition a liberal construction, accept all facts alleged in the petition as true and accord the petitioner the benefit of every possible inference. Leon v. Martinez, 84 N.Y.2d 83 (1994); Alden Global Value Recovery Master Fund, L.P. v. Keybank National Association, 159 A.D.3d 618 (1st Dept 2018); Nationwide Insulation Sales, Inc. v. Nova Casualty Co., 74 A.D.3d 1297 (2d Dept 2010). The sufficiency of a petition is measured against what is required of pleadings in a particular case. East Hampton Union Free School Dist. v. Sandpebble Bldrs., Inc., 66 A.D.3d 122 (2nd Dept 2009).

The standard for determining the sufficiency of a predicate notice is its "reasonableness in view of the attendant circumstances." Oxford Towers Co., LLC v. Leites, 41 A.D.3d 144 (1st Dept 2007); 323 3rd St. LLC v. Ortiz, 13 Mise 3d 141(A) (App Term 2d & 11th Jud Dist 2006); D.K. Property Inc. v. Mekong Restaurant Corp., 187 Mise 2d 610 (App Term 1st Dept 2001), quoting Hughes v. Lenox Hill Hospital, 226 A.D.2d 4 (1st Dept 1996), Iv denied 90 N.Y.2d 829 (1997). A predicate notice must provide the facts forming the basis of the proceeding against


which a tenant will have to present a defense. Rascoff/Zysblat Organization, Inc. v. Directors Guild of America, 297 A.D.2d 241 (1st Dept 2002); Jewish Theological Seminary of America v. Fitzer, 258 A.D.2d 337 (1st Dept 1999).

Respondent asserts this proceeding should be dismissed, pursuant to CPLR 3211(a)(7), for Petitioner's alleged failure to state a cause of action, on various grounds: that the pleadings, as filed, fail to state a cause of action; that, upon removal of any reference to the criminal charges filed against Respondent, that have been sealed, pursuant to CPL §§ 160.50, 160.55, from the notice of termination, Petitioner has failed to state a cause of action; and that Petitioner has failed to state a cause of action because it did not serve a notice to cure as is allegedly required by the lease agreement between the parties. Further, if the proceeding is not dismissed in its entirety, Respondent asserts the claim that Respondent has created a nuisance should be dismissed for failure to state a cause of action.

Respondent's motion is denied to the extent dismissal of the proceeding is sought based on the assertion that the "pleadings themselves, standing alone, fail to state a cause of action for a drug holdover."[2] The allegations in the notice of termination that Respondent was found by the police in his bedroom with a large quantity of small plastic bags, a stamp that could be used for labeling, three scales, two grinders, a bottle labeled "lactose," and a drug, Tramadol, and that in the kitchen another container was found containing a large number of glassine envelopes, sufficiently create an inference that the apartment was used on an ongoing basis to facilitate the


manufacture and/or preparation of illegal drugs and that Respondent knew or should have known of the illegal drug activity in the apartment thereby stating a cause of action for a "drug holdover" and/or a proceeding pursuant to RSC § 2524.3(d). Second Farms Neighborhood HDFC v. Lessington, 31 Mise 3d 144(A)(App Term 1st Dept 2011) citing 855-79 LLC v. Salas, 40 A.D.3d 553 (1st Dept 2007). Under these circumstances, allegations of multiple arrests at the apartment are not required for stating a cause of action for the illegal use of the apartment.

Further, Respondent's argument that Petitioner has failed to state a cause of action because the factual allegations in the pleadings are based on records that have been sealed, pursuant to CPL §§ 160.50, 160.55, is misplaced. It would be inappropriate to dismiss this summary holdover proceeding for failure to state a cause of action for this reason considering the petition, as filed, states a cause of action. Petitioner did not include anything inappropriate in the petition at the time it was filed in that the petition was filed months prior to the sealing of the records related to Respondent's arrest and prosecution for the alleged activities that are the basis of this proceeding. People v. Bundy, 60 Mise 3d 518 (Justice Ct Monroe County 2018); M.S. Hous. Assoc., v. Williams, 13 Mise 3d 1233(A) (Civ Ct NY County 2006).

The sealing of the documents in the criminal case file serves to place limitations on the evidence that Petitioner may present at trial to prove the allegations of Respondent's illegal use of the apartment. It does not retroactively render a proper petition defective. "The sealing...

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