M. 1695 G.C. LLC v. Perez
| Decision Date | 19 November 2019 |
| Docket Number | L & T 66432/2018 |
| Citation | 66 Misc.3d 320,113 N.Y.S.3d 514 |
| Parties | M. 1695 G.C. LLC, Petitioner, v. Arturo PEREZ, "John Doe," "Jane Doe,", Respondents. |
| Court | New York Civil Court |
Lazarus Karp LLP — for the Petitioner
Mobilization for Justice, by Alberto Gonzalez, Esq. — for the Respondent
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.1
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:
(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:
(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.
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] []; 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.
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.2 (See Waring v. Barker Co. v. Santiago , 1998 N.Y. Misc. LEXIS 749 [App. Term, 1st Dept. 1998].)
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 [].)
Although it was not cited by the Petitioner in either its termination...
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