2186 Realty NY LLC v. Martinez, 2022-31054

CourtNew York Civil Court
Writing for the CourtNORMA J. JENNINGS, J.
Parties2186 REALTY NY LLC, Petitioner, v. YESENIA MARTINEZ, Respondent.
Decision Date25 April 2022
Docket NumberL&T Index 12396/20,2022-31054

2186 REALTY NY LLC, Petitioner,
v.

YESENIA MARTINEZ, Respondent.

No. 2022-31054

L&T Index No. 12396/20

Civil Court of the City of New York

April 25, 2022


Unpublished Opinion

Petitioner's Attorney: Moss & Tapia Law LLC

Respondent's Attorney Nora Kenty, Esq. Mobilization For Justice, Inc.

DECISION/ORDER

NORMA J. JENNINGS, J.

Recitation, as required by CPLR 2219(a), in the papers submitted in support of respondent's motion to dismiss the proceeding.

PAPERS NUMBERED

Respondent's Motion to Dismiss, Affidavits. Memorandum of Law, and exhibits....................................1

Affirmation in Opposition ....................................2

Reply Memorandum of Law ....................................3

Upon the foregoing citied papers, the decision/order in this motion is as follows:

Petitioner commenced this holdover proceeding to recover possession of apartment IF located at 2186 Grand Concourse, Bronx, New York. Petitioner seeks possession on the ground that respondent is breaching a substantial obligation of her tenancy. Petitioner served a Notice to Cure dated January 20, 2020 which provides:

PLEASE TAKE NOTICE that you are violating a substantial obligation of your tenancy and of your lease, as renewed other than the obligation to surrender possession of such housing accommodation, entered into between you and the landlord for the occupation of the premises described above in that you have installed a "built in" partition (a sheetrock wall erected from floor to ceiling creating an interior room in the 4th room from east) creating an extra room in the premises, without the prior consent of the landlord, in violation of Paragraph 10 of your lease dated May 15, 2013, as renewed December 28, 2017, and in violation of the City of New York Department of Housing Preservation and Development building code (violation #13316526)
PLEASE TAKE FURTHER NOTICE that you must cure such violation on or before February 11, 2020 and unless you cure such violation on or before said date, you will be Required to remove from and surrender possession of the demised premises
1

The Notice of Termination dated, February 12, 2020, provides:

PLEASE TAKE NOTICE that the undersigned landlord has elected to and does hereby terminate on March 4, 2020, your lease and your tenancy, and the tenancy of all those claiming under you, with respect to those certain premises situated at 2186 Grand Concourse, in the Borough of Bronx, County, City and State of New York, more particularly described as apartment 1F in said premises.
The grounds under Section 2524.3 (a) of the Rent Stabilization Code upon which the landlord relies for your removal or eviction are the termination of your tenancy and the fact that you have violated and are still violating a substantial obligation of your lease dated May 15, 2013, as renewed, and of your tenancy other than the obligation to surrender possession of such housing accommodation and have failed to cure such violation after written notice by the landlord, dated January 20, 2020, that such violation cease on or before February 11, 2020, which notice has been duly served upon you and is annexed hereto

The facts that establish the existence of such grounds are:

1. That you installed a "built in" partition (a sheetrock wall erected from floor to ceiling creating an interior room in the 4th room east) creating an extra room in the premises, in violation of Paragraph 10 of your lease and the DHPD building code (DHPD violation #13316526) and contrary to the obligation of your tenancy.
2. Such partition creates a fire hazard in that it divides rooms in a way that easy access to and from the exit is blocked.
3. Such partition adds stress to the infrastructure of the premises by adding wall weight where the floor was not designed to hold such weight.
4. The addition of such partition may cause permanent damage to the walls, floor and ceiling of the subject premises dependent on how much partitions were built in.

The Notice of Petition and Petition is dated March 9, 2020, due to the Covid-19 Pandemic the proceeding first appeared on the court's calendar on September 27, 2021, after petitioner moved for a default judgment of possession against respondent. On October 4, 2021, Mobilization for Justice, Inc. filed a Notice of Appearance on behalf of respondent, Yesenia Martinez. On November 24, 2021, respondent filed a verified answer raising affirmative defenses and counterclaims. On January 14, 2022, respondent filed opposition to petitioner's motion for a default motion and cross-moved to dismiss the proceeding. Respondent moves to dismiss, pursuant to CPLR 3211(a)(8), for petitioner's failure to effectuate service in accordance with RPAPL Section 735, dismissing the proceeding, pursuant to CPLR 3211(a)(7), for petitioner's failure to serve an adequate predicate notice, in accordance with Rent Stabilization Code section 2524.2, and dismissing the...

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