Recitation, as required by CPLR 2219(a), of the papers considered in review of: Respondent’s Motion to Dismiss:Papers NumberedRespondent’s Motion 1Petitioner’s Opposition 2DECISION AND ORDER This summary holdover proceeding is brought by petitioner alleging the termination of a unregulated tenancy. Both parties are represented by counsel.Respondent moves pursuant to CPLR §3211(a)(1) “or” §3211(a)(7) for dismissal, arguing that the notice of termination is defective as it “purports to terminate a month-to-month tenancy on a day other than that which Respondent’s term expires, in violation of RPL §232-a.”Petitioner opposes the motion asserting compliance with RPL §232-a and that respondent misapplied RPL §232-b to this proceeding.Petitioner is correct that most of the cases relied on by respondent actually pertain to 232-b, which provides for holdovers outside of the City of New York. However, Clarke v. Shepard, upon which both parties rely, is a RPL §232-a case involving a month-to-month tenancy for a calendar month. 188 Misc 588 (AT, 1st Dept 1947). Furthermore, the plain meaning of RPL §232-a makes it clear that the termination notice must track the lease term period. In relevant part, RPL §232-a states:No monthly tenant, or tenant form month to month, shall hereafter be removed from any lands or buildings in the city of New York on the grounds of holding over his term unless at least thirty days before the expiration of the term the landlord or his agent serve upon the tenant…a notice in writing to the effect that the landlord elects to terminate the tenancy and that unless the tenant removes from such premises on the day on which his term expires the landlord will commence summary proceedings under the statute to remove such tenant therefrom.(emphasis added).The requirement to track the lease term period is made even more clear when read in conjunction with RPL §232-c which provides:Where a tenant whose term is longer than one month holds over after expiration of such term…if the landlord shall accept rent for any period subsequent to the expiration of such term…the tenancy created by the acceptance of such rent shall be a tenancy from moth to month commencing on the first day after the expiration of such term.(emphasis added).Respondent shows DSS shelter and City FEPS payments made on behalf of respondent after the termination of the natural lease, which petitioner does not dispute. Respondent correctly points out that the continued acceptance of rent after the expiration of the lease established a month-to-month tenancy commencing the day after the termination of the lease proper. Thus the monthly term was established from the 28th of the month through the 27th of the following month. Petitioner’s argument that the lease term became month to month commencing on the first of the month fails by the plain meaning of RPL 323-c. The termination had to occur on the 27th of the month, not the 30th.A proper predicate notice is a condition precedent to initiating a holdover proceeding and may not be amended. Chinatown Apartments, Inc. v. Chu Co Lam, 51 NY2d 786 (1980); Caiado v. Bishoff, 140 Misc 2d 1014 (Civ Ct, New York County 1988), (“service of a proper notice of termination is a condition precedent to the termination of the tenancy”). The failure to track the lease period in the Notice of Termination renders it fatally defective and warrants dismissal of the petition for failure to state a cause of action. Accordingly, respondent’s motion is granted and the petition herein is dismissed.This constitutes the decision and order of the Court.Dated: March 28, 2019Brooklyn, New York.
