Recitation, as required by CPLR §2219(a), of the papers considered in the review of respondent’s motion and petitioner’s cross motion: Papers Numbered Respondent’s Motion with Affidavit and Affirmation 1 Petitioner’s Opposition, Cross-Motion with Affidavits and Affirmation 2 Respondent’s Reply 3 Court File Passim DECISION/ORDER Upon the foregoing cited papers, the Decision and Order on this motion is as follows: Petitioner-landlord, Spencer Scott Group, LLC, (“petitioner”) commenced this instant holdover proceeding seeking possession of 221 A Maple Parkway, Staten Island, New York 10303 (“premises”) from respondents, Derek Nahas (“Mr. Nahas”) and Alyssa Howell (“Ms. Howell”). This proceeding was predicated upon a Notice of Termination dated June 8, 2020, with lease termination date of August 31, 2020. On April 29, 2021, respondent, Alyssa Howell (“Ms. Howell” or “respondent”) filed a Tenant’s Declaration of Hardship During the COVID-19 Pandemic (“Hardship Declaration”) under option A — that she is experiencing financial hardship. Thereafter, Ms. Howell retained counsel and moved to stay the matter until at least September 1, 20211, notwithstanding the allegations within the petition and for, and any other relief as may be just and proper. Respondent’s motion was denied, and matter was set for trial. See Decision/Order dated September 21, 2021, NYSCEF Document #31. On the date of the trial, respondent filed a motion seeking dismissal of the proceeding pursuant to CPLR §3211(a)(7) and any other relief as may be just and proper. Petitioner opposed and cross-moved seeking inquest for a default possessory and money judgment against respondent Derek Nahas, and immediate trial against respondent Alyssa Howell. The motion and cross-motion were fully briefed. Respondent’s motion to dismiss is granted and petitioner’s cross-motion is denied as moot. In March 2020, COVID-19 pandemic caused near-total cessation of the operations in the Housing Part of the New York City Civil Court. See DRP-213. On March 20, 2020, the Governor of New York issued an Executive Order 202.8 (“EO”) which among other things limited filing of new actions and proceedings. See EO 202.82. Thereafter, the New York State legislators enacted COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (“CEEFPA”) into law.3 On September 1, 2021, the New York State legislators inter alia amended CEEFPA during an extraordinary session and passed the bill S50001 (“amended act”). Part C, Section 4 of this amended act stayed an eviction proceeding until January 15, 2022, if a respondent submitted a Tenant’s Declaration of Hardship during the COVID-19 Pandemic (“hardship declaration”). The amended act also established an exception, wherein Part C, Section 7 stated the stay shall not apply if the tenant: (i) intentionally caused significant damage to the property; or (ii) is persistently and unreasonably engaging in behavior that substantially infringes on the use and enjoyment of other tenants or occupants or causes a substantial safety hazard to others. However, the act has since expired and all residential eviction matters, both nonpayments and holdover, may proceed in the normal course. See AO/34/22 dated January 16, 2022. Here, respondent moves to dismiss this instant proceeding pursuant to CPLR §3211(a)(7) on the grounds that the pleadings fail to state a cause of action. Particularly, respondent avers that the petition was improperly commenced as tenancy was not properly terminated. Respondent also argues that without a cure period, the termination is ineffective as a breach of lease proceeding. Respondent additionally argues that RPAPL §753(4) provides a post-judgment cure period even in unregulated tenancies. Respondent then goes on to argue that even if lease allows termination without a cure period, that does not give rise to the summary proceeding, but rather an ejectment action. In opposition to respondent’s motion, petitioner argues that the lease terms do not mandate a notice to cure and absence of same is not the basis to dismiss a proceeding. Petitioner further argues respondent’s objectional conduct cannot be cured. Additionally, petitioner argues that respondent fails to provide or produce any evidence of cure of the objectionable conduct alleged. Petitioner also argues that this proceeding should not be dismissed because respondents are engaging in nuisance as their conduct threatens safety of the building occupants. In reply, respondent argues that a lease term cannot waive the requirements that a notice to cure be served before a breach of lease holdover can be commenced. Furthermore, respondent asserts that the petitioner’s predicate notice and petition do not invoke nuisance cause of action and new allegations made for pre-trial motions cannot be used to amend the predicate notice. The Notice of Termination petitioner served upon respondent is dated June 8, 2020 and it states: “THIS LETTER IS TO ADVISE YOU THAT THE LANDLORD HAS ELECTED TO TERMINATE YOUR LEASE, DATED NOVEMBER 25TH 2019. YOUR LEASE IS HEREBY DEEMED TERMINATED AS OF AUGUST 31, 2020 DUE TO YOUR REPEATED FAILURE TO HONOR THE TERMS OF THE LEASE. YOU HAVE BREACHED THE LEASE AS FOLLOWS: 1. CHRONIC FAILURE TO PAY RENT ON TIME AND IN FULL. BELOW IS A BREAKDOWN OF ALL RENT ARREARS OWED TO DATE: MONTH MARCH 2020 AMOUNT — $ 300 MONTH APRIL 2020 AMOUNT — $ 975 MONTH JUNE 2020 AMOUNT — $ 1,975 MONTH JUNE 2020 LATE FEE AMOUNT — 80 2. FAILURE TO PROVIDE PROOF OF RENTER’S INSURANCE (SEE PARAGRAPH 20 OF THE LEASE). 3. VIOLATING THE CONDO BYLAWS BY DISCARDING CIGARETTES ON THE PREMISES, CAUSING THE LANDLORD TO INCUR FINES. (SEE PARAGRAPH 14 OF THE LEASE). 4. BREACHING THE COVENANT OF QUIET USE AND ENJOYMENT. 5. FAILURE TO MAINTAIN THE PREMISES BY CAUSING THE SYSTEM TO FLOOD FIVE TIMES.” On the first glance, this Notice of Termination seems to state respondents’ tenancy is terminated due to a breach of the lease. However, it also alleges that respondents engaged in chronic failure to pay rent on time and in full. Furthermore, the notice also alleges that respondents failed to maintain the premises by causing the system to flood five times which could be interpreted as a nuisance allegation. Assuming arguendo petitioner intended to predicate this proceeding with a Notice of Termination under three separate theories — chronic rent delinquency, nuisance, and breach of lease — the Notice of Termination still fails to properly terminate respondents’ tenancy to maintain this proceeding under all three theories independently and combined. Chronic Rent Delinquency Courts have found that the commencement of frequent non-payment proceedings in a short amount of time, due to a tenant’s unjustified failure to pay rent is a viable claim for eviction based on chronic non-payment of rent. See Adam’s Tower Ltd. Partnership v. Richter, 186 Misc.2d 620 (App. Term 1st Dept. 2000) (the court considered the tenant’s “‘long term, unjustified and persistent failure’ to pay rent as it became due” supported an eviction based upon the chronic non-payment of rent because there were nine non-payment proceedings in three years), citing Sharp v. Norwood, 223 A.D.2d 6 (A.D. 1st Dept. 1996); aff’d 89 N.Y.2d 1068 (1997)). See also, Definitions Personal Fitness v. 133 E. 58th St., 107 A.D.3d 617 (1st Dept. 2013) (ten non-payment proceeding in seven years); 2564 Co. v. D’Addario, 35 Misc.2d 176 (App. Term 1st Dept. 2000) (eleven non-payment proceedings in one and a half years). Here, there is no evidence that petitioner previously commenced nonpayment rent proceeding(s) before commencing this holdover. Given the lack of a history of nonpayment proceedings against respondents, chronic rent delinquency cannot be the basis for commencement of this holdover. Although there is no magic number of proceedings required to maintain a chronic rent delinquency, there must be a history of more than one. See also Sharp v. Norwood, 223 A.D.2d 6 (A.D. 1st Dept. 1996) (In a chronic non-payment of rent holdover proceeding, “there is no ‘magic number’ of prior proceedings required, as each case is sui generis.); 25th Realty Associates v. Griggs, 150 A.D.2d 155 (1st Dept. 1989) (a single non-payment proceeding cannot be the basis of a chronic delinquent holdover). Nuisance As per the petitioner’s Notice of Termination, this is a breach of lease holdover. Although moot as CEEFPA has now expired, the court notes that this holdover proceeding was calendared as a matter that may have fit within the exception established by Part C, Section 7 of the amended act. However, allegations simply do not rise to the level that fits within the exception as the Notice of Termination does not sufficiently plead nuisance. Notwithstanding CEEFPA or other provisions of the law, an otherwise defective Notice of Termination cannot be resuscitated. Breach of Lease When the lease is silent, the court is left with common law and Rent Stabilization Code for instruction. In a regulated tenancy such as rent stabilized housing accommodation, notice to cure and Notice of Termination are essential predicates to a proceeding commenced pursuant to RSC §2524.3(a). Where the premises is unregulated and parties’ lease is silent to a requirement of notice to cure, a tenant may still seek an injunction for a cure. See First Natl. Stores v. Yellowstone Shopping Center, 21 N.Y.2d 630, 237 N.E.2d 868, 290 N.Y.S.2d 721 (1968) (“[a] Yellowstone injunction maintains the status quo so that a…tenant, when confronted by a threat of termination of its lease, may protect its investment in the leasehold by obtaining a stay tolling the cure period so that upon an adverse determination on the merits the tenant may cure the default and avoid a forfeiture”). A holdover proceeding based upon a landlord’s termination of a lease may only be maintained where there is a conditional limitation in the lease providing for its early termination. See Fourth Hous. Co., Inc. v. Bowers, 53 Misc. 3d 43, 39 NYS3d 350, 2016 NY Slip Op 26217 (App Term 2nd Dept. 2016) citing, Perrotta v. Western Regional Off-Track Betting Corp., 98 AD2d 1, 469 NYS2d 504 [1983]; St. Catherine of Sienna Roman Catholic Church, at St. Albans, Queens County v. 118 Convent Assoc., LLC, 44 Misc 3d 8, 988 NYS2d 405 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Furthermore, RPAPL §753(4) states that in the event a proceeding is based upon a claim that the tenant or lessee has breached a provision of the lease, the court shall grant a thirty day stay of issuance of the warrant, during which time the respondent may correct such breach. In effect, RPAPL §753(4) grants a losing tenant a period within which to cure the default. See Post v. 120 E. End Ave. Corp., 62 N.Y.2d 19, 475 N.Y.S.2d 821, 464 N.E.2d 125 (1984). This statute is procedural and remedial in nature. See Nestor v. McDowell, 81 N2d 410, 615 NE2d 991, 599 NYS2d 507 (1993). Here, there is no dispute that the premises is a condominium unit and the respondents’ tenancy is not rent regulated. The lease annexed to petitioner’s opposition and cross-motion does not set a conditional limitation providing for an early termination of the lease. The lease is also silent with regards to a requirement of a notice to cure before a Notice of Termination is served. However, RPAPL §753(4) and Yellowstone injunction are available to tenants in breach of lease cause of action. To the extent that this language may be considered ambiguous any ambiguity must, in any event, be construed against landlord, as the drafter. See 151 W. Assoc. v. Printsiples Fabric Corp., 61 NY2d 732 [1984]). The lack of conditional limitation on the lease combined with the instruction from common law and Rent Stabilization Code, in essence notice to cure becomes a predicate notice requirement. Petitioner here although predicated this holdover proceeding with a Notice of Termination titled “breach of lease” no cure opportunity was ever afforded to respondents. On a motion to dismiss under CPLR 3211 §(a)(7) for failure to state a cause of action, the pleading is to be afforded a liberal construction, accept the facts as alleged in the complaint as true, accord petitioner the benefit of every possible favorable inference, and determine only whether the facts alleged fit within any cognizable legal theory. See Leon v. Martinez, 84 NY2d 83, 638 NE2d 511, 614 NYS2d 972 (1984). If from its four comers factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail. See Guggenheimer v. Ginzburg, 43 NY2d 268, 372 NE2d 17, 401 NYS2d 182 (1977). Petitioner cannot maintain a breach of lease holdover as discussed supra and there is no holdover for nonpayment of rent case. Accordingly, respondent’s motion to dismiss is granted and the petition is hereby dismissed without prejudice to commence a nonpayment of rent proceeding or to properly commence a holdover. The petitioner’s cross-motion is denied as moot since the court has dismissed this proceeding. The foregoing constitutes the Decision/Order of this Court. Dated: January 24, 2022
