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436-438 Associates v. Alvardo

Civil Court of the City of New York, New York County

October 31, 2013

436-438 Associates, , Petitioner-Landlord,
v.
Maria Pico Alvardo, Respondent-Tenant, "JOHN DOE" & "JANE DOE" Respondents- Undertenants.

Unpublished Opinion

Petitioner's attorney: Rosman & Associates by Tracy W. Boshart

Respondent's attorney: Housing Conservation Coordinators, Inc. by Shawn Blumberg, of counsel.

PETER M. WENDT, J.H.C.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of Respondent's motion for an order dismissing the petition on the grounds that the termination notice and petition fail to state sufficient facts to support the allegations of illegal use, or alternatively, time to interpose an answer:

Papers Numbered

Notice of Motion, Affirmation Annexed1

Memorandum of Law2

Affirmation in Opposition3

Memorandum of Law 4

Reply Affirmation 5

Upon the foregoing cited papers, the Decision/ Order in this motion is as follows:

Petitioner commenced this holdover proceeding based upon Respondent's alleged use of the premises for illegal and/or immoral purposes pursuant to Real Property Actions and Proceedings Law ("RPAPL") §711(5), and Rent Stabilized Code ("RSC") §2524.2(b) and §2524.3(d). The Ten (10) Day Notice of Termination ("Termination Notice") in support of the petition states that:

1) Upon information and belief, on or about, October 22, 2012 the New York City Police Department arrested one or more individuals at the subject premises.

2) Upon information and belief, the arrests were the result of illegal activity occurring in the subject premises

3) On or about, November 20, 2012 Landlord's attorney wrote a letter to tenants asking for a written explanation of the above described incident of October 22, 2012.

4) Your response to the letter, and a prior notice served upon you, denying any wrongdoing is insufficient to cure the aforementioned allegations.

Respondent moves to dismiss this proceeding on the grounds that the Termination Notice and petition fail to state sufficient facts to support a claim of illegal activity in the subject premises. Respondent claims that Petitioner's allegations are conclusory and vague. Respondent asserts that Petitioner does not attach any documentation regarding any arrest, prosecution or alleged illegal activity at the subject apartment. Respondent further contends that the Termination Notice and petition fail to specifically state what kind of illegal use or activity allegedly transpired at the subject apartment, identify who was arrested at the subject apartment on October 22, 2012, or that the arrest was the result of anything related to illegal use or activity in the subject premises. As such, Respondent asserts that Petitioner's bare and conclusory allegations do not rise to the evidentiary level necessary to trigger Real Property Law ("RPL") §231(a) nor does it satisfy Rent Stabilization Code §2524.2(b) or RPAPL §741(4). Respondent correctly argues that no specific facts stating any particular illegal activity or business occurring in the subject apartment are set forth in the Notice of Termination.

Petitioner opposes, alleging that the Termination Notice is sufficient to put Respondent on notice of its claim and the petition states a cause of action since it states the date that the arrest occurred, that the arrest was the result of "illegal activity" occurring within the subject apartment, and prior attempts to resolve the matter with Respondent in good faith were unsuccessful. Petitioner also alleges that it is unable to plead specific facts to describe the incident which led to the arrest as those facts are entirely in the possession of Respondent. Therefore, Petitioner maintains that it should be entitled to move forward with its claim on the information set forth in the Termination Notice, and obtain evidence through seeking leave from this Court to obtain discovery. The Court notes that landlord or its counsel could easily have ascertained sufficient relevant facts with a simple visit to the police precinct. The arrest records of the New York City Police Department regarding adults are certainly not confidential. The landlord cannot commence a summary eviction proceeding in hopes that it will discover if it even has a cause of action by seeking leave of the Court to obtain discovery, after commencement of the holdover proceeding.

A holdover proceeding brought pursuant to RPAPL §711(5) must state that the premises, or any part thereof, are used or occupied as a bawdy house, or place of assignation for lewd persons, or for purposes of prostitution, or for any illegal trade or manufacture, or other illegal business. See RPAPL §711(5). Furthermore, the illegal activity cannot be an isolated incident. The term "use" of premises for illegal purposes implies doing something customarily or habitually upon the premises. Grosfeld Realty Co. v Lagares, 150 Misc.2d 22 (App Term 1st Dept 1989).

RSC §2524.2(b) provides that "every notice to a tenant to vacate or surrender possession of a housing accommodation shall state the ground under section 2524.3 or 2524.4 of this Part, upon which the owner relies for removal or eviction of the tenant, the facts necessary to establish the existence of such ground, and the date when the tenant is required to surrender possession [emphasis added]." Berkeley Assoc. Co. v. Camlakides, 173 A.D.2d 193, 195 (1st Dept. 1991), affd 78 N.Y.2d 1098 (1991); Hirsch v Stewart, 63 A.D.3d 74, 82 (1st Dept 2009). "In the absence of any factual recitation of the reasons the landlord seeks to recover possession, the notice is insufficient to serve as a predicate for eviction proceedings." Haruvi v. Rosen, 10 Misc.3d 137 (A) (App. T. 1st Dept. 2005). See, Berkeley Assoc. Co. v. Camlakides, supra; Hirsch v Stewart, supra. Furthermore, the notice cannot be amended. Chinatown Apts. v Chu Cho Lam, 51 N.Y.2d 786 (1980).

The allegations set forth in the Termination Notice are conclusory, and insufficient to put Respondent on notice of Petitioner's claim. The Notice only alleges that upon information and belief, one or more individuals at the subject apartment were arrested on October 22, 2012, due to some unspecified "illegal activity" occurring in the subject premises. The Notice of Termination fails to state who was arrested, why the person was arrested, if any criminal charges were filed by anyone, or what illegal activity, if any, allegedly took place at the subject apartment. The mere fact that an arrest occurred at the subject apartment does not establish any guilt or that the subject apartment was used for illegal trade, manufacture, or other illegal business. For example, Respondent, an occupant or a guest could have been arrested on a bench warrant for some activity entirely unrelated to the subject premises. Such arrest could not form the basis of commencing a proceeding based upon RPAPL 711(5). Therefore, the Termination Notice is entirely uninformative as to what illegal activity or business Petitioner is alleging occurred at the subject apartment, so that Respondent may prepare a defense in this proceeding. The landlord may not simply commence a summary eviction proceeding as a fishing expedition to learn if it has cause to evict a rent stabilized tenant (RSC §2524.2 [a] and [b]), by seeking leave of the court to conduct discovery after commencement of the action.

For all the above stated reasons, the Termination Notice which forms the basis of this eviction proceeding seeking to evict Respondent from his rent stabilized apartment is insufficient. Accordingly, Respondent's motion is granted. The petition is dismissed.

The foregoing constitutes the decision and order of this Court.


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