Civil Court of the City of New York, Queens County
Matilde Pena, Esq. Matilda Pena & Associates, P.C.
Attorneys for Petitioner
Michael Kang, Esq. Kew Gardens, NY 11415 Attorneys for
CLINTON J. GUTHRIE J.H.C.
as required by CPLR § 2219(a), of the papers considered
in the review of Respondent's motion to dismiss pursuant
to CPLR § 3211(a)(7):
of Appearance and Notice of Motion &
Affirmation/Affidavit/Exhibits Annexed 1
in Opposition & Exhibits Annexed 2
in Reply & Exhibits Annexed 3
the foregoing cited papers, the decision and order on
Respondent's motion to dismiss is as follows:
immediate holdover proceeding was commenced by Notice of
Petition and Petition dated June 10, 2019. Annexed to the
Petition are a "Ten (10) Day Notice to Cure"
(hereinafter "Notice to Cure") and "Ten (10)
Day Notice to Terminate" (hereinafter "Notice of
Termination"), which allege that Respondents Michael
Stone (cooperator of the subject premises, a Mitchell-Lama
cooperative apartment) and occupants Gregory Roland Williams,
John Doe, and Jane Doe committed a nuisance in the subject
premises, violated a substantial obligation of the Occupancy
Agreement, and used the premises for illegal or immoral
purposes. The notices contain identical allegations, except
the Notice of Termination adds an additional allegation based
on an incident that purportedly occurred after the service of
the Notice to Cure.
the initial court date on July 3, 2019, the proceeding was
adjourned for Respondent Michael Stone to seek counsel
through the Universal Access program. Prior to the next court
date (August 13, 2019), the Legal Aid Society appeared for
Respondent and filed a motion to dismiss, or in the
alternative, leave to interpose an answer. After an
adjournment for submission of opposition and reply papers,
the Court heard argument on Respondent's motion on
September 18, 2019 and reserved decision.
crux of Respondent's motion is that the Notice of
Termination is defective insofar as it does not allege any
facts demonstrating that Respondent failed to cure the
allegations set out in the Notice to Cure. In 31-67
Astoria Corp. v. Landraira, 54 Misc.3d 131 (A), 52
N.Y.S.3d 249 (App. Term 2d Dep't 2017), the Appellate
Term, Second Department held that a termination notice
"was defective because it failed to allege that the
defaults specified in the notice to cure, which were curable,
had not been cured during the cure period." (Citing
Hew-Burg Realty v. Mocerino, 163 Misc.2d 639, 622
N.Y.S.2d 187 (Civ. Ct. Kings County 1994)). Moreover, "a
violation removed during the cure period will not support the
termination of a lease based on the tenant's alleged
default." Id. See also Sudimac v.
Beck, 63 Misc.3d 1208 (A), 2019 NY Slip Op 50442(U)
(Civ. Ct. Queens County ...