Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion: Papers Numbered Notice of Motion and Affidavits Annexed 1 Answering Affirmation 2 Replying Affirmation 3 Decision and Order Factual Background This is a licensee holdover summary proceeding. The petition alleges that respondents are not entitled to possession of the apartment. The tenant of record was the partner of Rafaela Rosario and father of Franchelis Rodriguez. The tenant of record passed away. Respondents, Rafaela Rosario and Franchelis Rodriguez, move to dismiss the petition because the predicate notice is defective. In the alternative, respondents seek a stay of this holdover pending the outcome of a Remaining Family Member grievance, and for such further relief as may be deemed just and proper. It is undisputed that Franchelis Rodriguez is the daughter of the deceased tenant of record. Respondent Rodriguez had filed an Article 78 petition seeking a third step remaining family member grievance sometime in the Spring of 2017. In the Matter of Franchelis Rodriguez v. New York City Housing Authority et al, Index No. 250461/17 (Bx. Co. Supreme Court). The Article 78 petition was settled by a two attorney stipulation. Petitioner agreed to schedule a third step grievance, which would address, on the merits, the remaining family member grievance seeking a lease. At the time that the predicate notice was issued, on or about January 16, 2018, the third step grievance had not yet taken place. It is undisputed that the remaining family member grievance is still being pursued. Arguments Respondents argue that the Notice to Quit is confusing. The confusion arises from the composition and the structure of the last paragraph of the predicate notice. Respondents argue that the phrase, “upon your failure to remove from said premises at such time,” is subject to more than one interpretation. When the respondents look at the document it is unclear which date is controlling. Is it the date stated at the top of the Notice to Quit or is it the date stated before the phrase that the begins with the word, “upon.” Respondents maintain that there are two possible interpretations, and as such the notice is confusing and therefore unclear, ambiguous and equivocal. Petitioner argues that the Notice to Quit is “clear, unambiguous and unequivocal.” The predicate notice contains the date by which respondents are to remove themselves from the subject premises otherwise a summary proceeding will be commenced. Petitioner also argues that the notice to quit states the basis for the holdover, that upon the death of the tenant of record, “whose right terminated upon his death…their right of possession also terminated at the same time and that Petitioner is now entitled to possession.” Affirmation in Opposition 8. Petitioner’s response is that respondents are simply mistaken because the predicate notice states that respondents must remove themselves from the apartment by February 5, 2018. Petitioner did not address or rebut the argument regarding the construction of the phrase, “upon your failure to remove from said premises at such time.” Respondents, alternatively, seek a stay of the holdover proceeding pending the third step grievance. There is no dispute that the parties agreed to schedule a third step grievance pursuant to the stipulation of settlement. Petitioner agrees that the third step grievance is still “pending.” Petitioner argues that respondents should not be granted a stay because they already have had a stay. Discussion Predicate Notice The predicate notice will be examined “in view of all attendant circumstances.” See, Hughes v. Lenox Hill Hospital, 226 Ad2d 4, app dismissed 90 NY2d 829 (1997). The Ten Day Notice to Quit states: Please take notice that on or before February 5, 2018 you and all other person occupying the above stated apartment and premises are required to quit and remove from the same for the reason: You are in possession of said apartment and premises as licensee(s) of Ramon Rodriguez who was a tenant of the undersigned and entitled to possession at the time the license was granted prior to March 20, 2015, and said tenant is no longer entitled to the possession thereof by reason of the fact that Ramon Rodriguez he died March 20, 2015 on or about said date and his right of possession terminated on his death and your right of possession terminated at the same time and the undersigned is now entitled to the possession thereof. Upon your failure to remove from said premises at such time, the undersigned will commence summary proceedings under the statute to remove you from the said premise. Dated: January 16, 2018 Bronx, NY 10467 The predicate must state the basis for the notice, a time period to move out and the consequences for the failure to move out. Whether the date to move out is subject to more than one interpretation is the crux of respondents’ argument. If the predicate notice is unclear, ambiguous or equivocal, the predicate notice is defective. A predicate notice cannot be amended; a defect in the notice will result in the dismissal of the petition. Chinatown Apts, Inc. v. Chu Cho Lam, 51 NY2s 786 (1980). There is no dispute that the predicate notice contains two critical dates; one is the date when the tenant of record passed away, March 20, 2015, and the second is the date for the respondents to remove themselves from the premises, to wit, February 5, 2018. The last sentence in the predicate notice states that “upon your failure to remove from said premises at such time”, the petitioner will commence an eviction proceeding. Respondents argue that by placing the phrase “at such time” immediately after the date of death, the document is confusing. The date of death was March 20, 2015, and “as such time,” makes the ten days March 30, 2015. A move out date of March 30, 2015 would be impossible and absurd since the ten-day notice to quit must refer to a date in the future from the date of said notice. The predicate notice used by petitioner is a form notice. The form allows petitioner to insert dates and the name of the tenant of record in licensee proceedings. The use of forms may be cost effective, except that when the form is used sans proper editing, the notice may be defective. The notice to quit fails to include the actual date of surrender in the last paragraph. Instead the use of the words, “at such time” are invoked and grammatically may refer to March 20, 2015, even if this is not the intention of the drafter. The notice allows for more than one interpretation. The use of plain English would have resolved the bizarre reading of the notice. Whether the last paragraph in the predicate notice relates back to the date of death or the date to move out, is not dispositive; the question is whether “in view of all attendant circumstances,” the notice is reasonable. Hughes v. Lenox Hill Hospital, supra. The Court finds that in view of all attendant circumstances, the predicate notice is not defective, although poorly drafted. Pending Third Step Grievance The facts here show that after the death of the tenant of record and before this Ten-Day Notice to Quit was issued, the parties agreed in a stipulation that respondents would be entitled to a third step grievance seeking Remaining Family Member status. Both sides agree that the stipulation of August 3, 2017 is still controlling. This fact is not addressed in the predicate notice. The predicate notice simply ignores a binding two attorney stipulation of settlement. The stipulation of settlement is intrinsically connected to the basis for the predicate notice and whether a holding over is ready for judicial adjudication. It cannot be denied that the predicate notice is inherently incompatible and contradictory to the outstanding third step grievance. Effectively by issuing a predicate notice before the administrative review process has been commenced, the predicate notice is rendered unclear, ambiguous and equivocal. Under these circumstances, the predicate notice has placed the litigant in the untenable position of having to address this issue in two separate forums at the same time. If the holdover were not addressed, based on the belief that a third step grievance is pending, a default judgment may have been entered with a warrant of eviction to issue in ten days. See, Brusco v. Braun, 84 NY 2d 674 (1994). Furthermore, the duty to investigate facts relevant to the predicate notice apply to this petitioner. See, 128 Second Realty LLC v. Dobrowolski, 51 Misc. 3d 147 [A] (App. Term 1st Dep’t 2016); London Terrace Gardens, LP v. Heller, 40 Misc. 3d 135[A] (App. Term 1st Dep’t 2009). It is undisputed that the third step grievance was “still pending,” at the time that the predicate notice issued. The parties had agreed to follow a stipulation of settlement. The stipulation of settlement was negotiated and drafted between the respective attorneys. Courts look to stipulations of settlements as valid and enforceable agreements. Given that the stipulation of settlement gave respondents the right to a third-step grievance, the predicate notice is premature. Decision Based upon the above, respondents’ motion is granted to the extent that the Court finds that the predicate notice is contrary to the stipulation of August 3, 2017. Petitioner’s failure to include and address a binding settlement between the parties renders this predicate notice premature. The petition is dismissed without prejudice. This Decision/Order is being mailed to both sides. This constitutes the Decision and Order of the Court. So Ordered. Dated: September 19, 2019 Bronx, New York
