Spencer Scott Grp. v. Nahas
| Decision Date | 24 January 2022 |
| Docket Number | Index LT-300023-20/RI |
| Citation | 2022 NY Slip Op 30531 (U) |
| Parties | Spencer Scott Group, LLC, Petitioner-Landlord, v. Derek Nahas and Alyssa Howell, Respondents-Tenants. Motion Seq Nos. 2, 3 |
| Court | New York Supreme Court |
DECISION/ORDER
Recitation as required by CPLR §2219(a), of the papers considered in the review of respondent's motion and petitioner's cross motion:
Papers
Numbered
Respondent's Motion with Affidavit and Affirmation.............................................
Petitioner's Opposition, Cross-Motion with Affidavits and Affirmation.................
Respondent's Reply...................................................
Court File...................................................
Upon the foregoing cited papers, the Decision and Order on this motion is as follows:
Petitioner-landlord Spencer Scott Group, LLC, ("petitioner") commenced this instant holdover proceeding seeking possession of 221 A Maple Parkway, Staten Island, New York 10303 ("premises") from respondents, Derek Nahas ("Mr. Nahas") and Alyssa Howell ("Ms Howell"). This proceeding was predicated upon a Notice of Termination dated June 8, 2020, with lease termination date of August 31, 2020. On April 29, 2021, respondent Alyssa Howell ("Ms. Howell" or "respondent") filed a Tenant's Declaration of Hardship During the COVID-19 Pandemic ("Hardship Declaration") under option A - that she is experiencing financial hardship. Thereafter, Ms. Howell retained counsel and moved to stay the matter until at least September 1 2021[1] notwithstanding the allegations within the petition and for, and any other relief as may be just and proper. Respondent's motion was denied, and matter was set for trial. See Decision/Order dated September 21, 2021, NYSCEF Document #31. On the date of the trial, respondent filed a motion seeking dismissal of the proceeding pursuant to CPLR s3211(a)(7) and any other relief as may be just and proper. Petitioner opposed and cross-moved seeking inquest for a default possessory and money judgment against respondent Derek Nahas, and immediate trial against respondent Alyssa Howell. The motion and cross-motion were fully briefed. Respondent's motion to dismiss is granted and petitioner's cross-motion is denied as moot.
In March 2020, COVID-19 pandemic caused near-total cessation of the operations in the Housing Part of the New York City Civil Court. See DRP-213. On March 20, 2020, the Governor of New York issued an Executive Order 202.8 ("EO") which among other things limited filing of new actions and proceedings. See EO 202.8[2]. Thereafter, the New York State legislators enacted COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 ("CEEFPA") into law.[3] On September 1, 2021, the New York State legislators inter alia amended CEEFPA during an extraordinary session and passed the bill S50001 ("amended act"). Part C, Section 4 of this amended act stayed an eviction proceeding until January 15, 2022, if a respondent submitted a Tenant's Declaration of Hardship during the COVID-19 Pandemic ("hardship declaration"). The amended act also established an exception, wherein Part C, Section 7 stated the stay shall not apply if the tenant: (i) intentionally caused significant damage to the property; or (ii) is persistently and unreasonably engaging in behavior that substantially infringes on the use and enjoyment of other tenants or occupants or causes a substantial safety hazard to others. However, the act has since expired and all residential eviction matters, both nonpayments and holdover, may proceed in the normal course. See AO/34/22 dated January 16, 2022.
Here, respondent moves to dismiss this instant proceeding pursuant to CPLR §3211(a)(7) on the grounds that the pleadings fail to state a cause of action. Particularly, respondent avers that the petition was improperly commenced as tenancy was not properly terminated. Respondent also argues that without a cure period, the termination is ineffective as a breach of lease proceeding. Respondent additionally argues that RPAPL §753(4) provides a post-judgment cure period even in unregulated tenancies. Respondent then goes on to argue that even if lease allows termination without a cure period, that does not give rise to the summary proceeding, but rather an ejectment action.
In opposition to respondent's motion, petitioner argues that the lease terms do not mandate a notice to cure and absence of same is not the basis to dismiss a proceeding. Petitioner further argues respondent's objectional conduct cannot be cured. Additionally, petitioner argues that respondent fails to provide or produce any evidence of cure of the objectionable conduct alleged. Petitioner also argues that this proceeding should not be dismissed because respondents are engaging in nuisance as their conduct threatens safety of the building occupants.
In reply, respondent argues that a lease term cannot waive the requirements that a notice to cure be served before a breach of lease holdover can be commenced. Furthermore, respondent asserts that the petitioner's predicate notice and petition do not invoke nuisance cause of action and new allegations made for pre-trial motions cannot be used to amend the predicate notice.
On the first glance, this Notice of Termination seems to state respondents' tenancy is terminated due to a breach of the lease. However, it also alleges that respondents engaged in chronic failure to pay rent on time and in full. Furthermore, the notice also alleges that respondents failed to maintain the premises by causing the system to flood five times which could be interpreted as a nuisance allegation.
Assuming arguendo petitioner intended to predicate this proceeding with a Notice of Termination under three separate theories - chronic rent delinquency, nuisance, and breach of lease - the Notice of Termination still fails to properly terminate respondents' tenancy to maintain this proceeding under all three theories independently and combined.
Courts have found mat the commencement of frequent non-payment proceedings in a short amount of time, due to a tenant's unjustified failure to pay rent is a viable claim for eviction based on chronic non-payment of rent. See Adam's Tower Ltd. Partnership v. Richter, 186 Misc.2d 620 (App. Term l¶ Dept. 2000) (the court considered the tenant's "'long term, unjustified and persistent failure* to pay rent as it became due" supported an eviction based upon the chronic non-payment of rent because there were nine non-payment proceedings in three years), citing Sharp v. Norwood, 223 A.D.2d 6 (A.D. 1-Dept. 1996); affd 89 N.Y.2d 1068 (1997)). See also. Definitions Personal Fitness v. 133 E. 58* St., 107 A.D.3d 617 (1"Dept. 2013) (); 2564 Co. v. D'Addario, 35 Misc.2d 176 (App. Term 1* Dept. 2000) ().
Here, there is no evidence that petitioner previously commenced nonpayment rent proceeding(s) before commencing this holdover. Given the lack of a history of nonpayment proceedings against respondents, chronic rent delinquency cannot be the basis for commencement of this holdover. Although there is no magic number of proceedings required to maintain a chronic rent delinquency, there must be a history of more than one. See also Sharp v. Norwood, 223 A.D.2d 6 (A.D. I" Dept. 1996) (In a chronic non-payment of rent holdover proceeding, "there is no 'magic number' of prior proceedings required, as each case is sui generis; 25th Realty Associates v. firipps 150 A.D.2d 155 (1M Dept. 1989) (a single nonpayment proceeding cannot be the basis of a chronic delinquent holdover).
As per the petitioner's Notice of Termination, this is a breach of lease holdover. Although moot as CEEFPA has now expired, the court notes that this holdover proceeding was calendared as a matter that may have fit within the exception established by Part C, Section 7 of the amended act. However, allegations simply do not rise to the level that fits within the exception as the Notice of Termination does not sufficiently plead nuisance. Notwithstanding CEEFPA or other provisions of the law, an otherwise defective Notice of Termination cannot be resuscitated.
When the lease is silent, the court is left with common law and Rent Stabilization Code for instruction. In a regulated tenancy such as rent stabilized housing accommodation, notice to cure and Notice of Termination are essential predicates to a proceeding commenced pursuant to RSC §2524.3(a). Where the premises is unregulated and parties' lease is silent to a requirement of notice to cure, a tenant may still seek an injunction for a cure. See First Natl. Stores...
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