Recitation, as required by CPLR §2219(a), of the papers considered in the review of respondent’s motion for an order dismissing the petition pursuant to CPLR 3211(a)(2) and (a)(7) or in the alternative extending her time to interpose an answer pursuant to CPLR 3211(f) and petitioner’s cross-motion for an order granting it leave pursuant to CPLR §§408, 3102 and 3107 to conduct discovery and directing respondent to tender use and occupancy pendente lite.Papers NumberedNotice of Motion and Affidavits Annexed 1Order to Show Cause and Affidavits AnnexedAnswering Affidavits (Cross-Motion) 2Replying Affidavits 3ExhibitsOtherDECISION/ORDER Upon the foregoing papers, the Decision/Order on this motion and cross-motion is as follows:BackgroundPetitioner commenced the instant nonprimary residence holdover proceeding by notice of petition and petition. Prior to commencement petitioner served a Notice of Non-Intention to Renew Lease (‘Golub Notice”). Elida Aybar (“respondent”) moves to dismiss the proceeding on the grounds that the petition fails to state a cause of action and that the court lacks subject matter jurisdiction. In the alternative, respondent seeks leave to file an answer. Petitioner cross-moves for leave to depose respondent, document production and use and occupancy pendente lite.DiscussionMotionIn deciding a motion to dismiss the court must afford the pleading a liberal construction, accept all facts as alleged as true and accord the plaintiff the benefit of every possible inference. CPLR 3211; Leon v. Martinez, 84 NY2d 83 [Ct App 1994]. Where dismissal is sought for failure to state a cause of action, the court’s sole function is to determine whether the facts as alleged fit within any cognizable legal theory. CPLR 3211(a)(7); CBS Corp. v. Dumsday, 268 AD2d 350 [1st Dept 2000].Respondent argues that dismissal is warranted because the Golub Notice is defective as a matter of law. Specifically, respondent asserts that the notice fails to allege the facts necessary to maintain a holdover proceeding therefore the court lacks jurisdictionThe predicate notice here states in relevant part:Upon information and belief, you have rarely been seen at the building or the Subject Premises since signing the lease renewal, nor have you maintained an ongoing substantial physical nexus to the Subject Premises for actual living purposes, as confirmed and substantiated by the agents and/or employees of the landlord, your neighbors, and those regularly present in the building where the premises is located.The apartment is occupied in your absence by Ramon Duran or “John Doe”, and upon information and belief, you have sublet and/or assigned the Subject Premises without the Landlord’s prior consent to Ramon Duran or “John Doe” without compliance with the requirements of Section 2525.6 of the Rent Stabilization Code, and Section 226(b) of the Real Property Law.Upon information and belief, you have vacated the Subject Premises, and you are currently residing elsewhere.In evaluating the facial sufficiency of a predicate notice in a summary proceeding, the appropriate test is one of “reasonableness in view of the attendant circumstances”. Hughes v. Lenox Hill Hospital, 226 AD2d 4 [Ct App 1996]. While the notice need not lay bare the landlord’s trial proof, it must adequately advise the tenant of the claim against her and thus allowing her to frame a defense. Peng v. Van Zandt, 14 Misc3d 138(A) [App Term 1st Dept 2007]. Therefore, “[e]very notice to a tenant to vacate or surrender possession of a housing accommodation shall state…the facts necessary to establish the existence of such ground”. RSC §2524.2(b). Where nonprimary residency is alleged, section 2520.6(u) of the Rent Stabilization Code sets forth the type of evidence which may be considered in proving the claim. They include, but are not limited to, specification of an alternate address on documents filed with a public agency; use of an alternate voting address; failure to occupy the subject premises for at least 183 days in the most recent calendar year; and subletting the premises. While no single factor is determinative, it is not enough for the notice to state in a conclusory fashion that the tenant has not maintained the premises as her primary residence or that she has not been observed at the premises for an extended period of time. London Terrace v. Heller, 40 Misc3d 135(A) [1st Dept 2009].The predicate notice here fails to set out facts with sufficient particularity so as to satisfy the standards of the Rent Stabilization Code. The first paragraph contains the conclusory assertion that respondent is not maintaining the premises as her primary residence based on assertions of unnamed neighbors and agents of the petitioner. While the second paragraph does assert a case specific allegation regarding respondent’s absence from the apartment, the third paragraph lacks any factual support for its conclusion that respondent is residing elsewhere. The sparsity of details in the notice renders it an insufficient predicate for a nonprimary residence holdover proceeding.ConclusionBased on the foregoing the motion is granted and the case dismissed. The cross-motion is denied as moot.This constitutes the decision and order of the Court.Date: June 27, 2018New York, New York
