Landlord appeals from a final judgment of the Civil Court, New York County (Jean T. Schneider, J.), entered on or about September 28, 2005, which granted tenant's motion for summary judgment dismissing a holdover summary proceeding.

PER CURIAM:

Final judgment (Jean T. Schneider, J.), entered on or about September 28, 2005, affirmed, with $25 costs.

Summary judgment was properly granted to tenant in this holdover proceeding, which alleged that tenant failed to provide access to her apartment to enable landlord to effectuate repairs. The undisputed record evidence established that upon tenant's receipt of the notice to cure, she agreed to provide access on March 21 and 22, 2005, and such additional dates as would be required, and that landlord did, in fact, enter the apartment and perform repairs on March 21st. Landlord's attorney conceded in his March 23rd letter to tenant's counsel that tenant gave access "allow[ing] my clients to address many of the issues which were of concern" and further invited tenant's attorney to "give me a call after you receive this letter and have a chance to discuss the situation with [tenant] so that we can schedule an access date" for the remaining work, which was described as "relatively simpl[e]". In these circumstances, landlord's precipitous service of the termination notice on March 24th was premature since, as landlord's own counsel acknowledged, tenant had already substantially complied with the notice to cure.
William P. McCooe, J. (Dissenting)

I respectfully dissent.

The parties had a long history on the access issue prior to the commencement of this proceeding. The landlord claimed not only a failure, but a refusal, by the tenant to grant access. [*2]Following a nonpayment proceeding decided in the landlord's favor where the Trial Court found that the tenant had failed to provide access to the landlord, the tenant filed two complaints with HPD resulting in violations which the landlord claims it has been unable to correct because it has been denied access. The notice to cure seeks access to remove the violations.

The landlord served a detailed notice to cure under the ten-day lease provision dated March 2, 2005 which provided that the tenant grant access by March 20, 2005. The tenant's attorney contacted the landlord's attorney and agreed to provide access on March 21 and March 22. Access was provided on March 21st but the work was not completed. The attorney for the landlord by letter dated March 23, 2005 requested further access. The violations had an April 17, 2005 HPD deadline. The landlord then served a notice of termination on March 24, 2005.

The majority dismisses this proceeding on the ground that the notice of termination was "premature" because the "tenant had already substantially complied with the notice to cure." Even if the characterization of the work performed is accepted, there is no legal authority to equate substantial compliance with a notice to cure with compliance. Furthermore, the notice to cure is directed to access and not to the particular work to be performed. Substantial compliance, if a basis for dismissal, would relate to the fact that the tenant granted access on one occasion which constituted a cure.

As the Court of Appeals stated in State of New York v. Lunden (60 NY2d 987, 992 [1983]):

[S]ummary judgment is a drastic remedy and should not be granted whenever there is "any doubt" as to the existence of a factual issue (Millerton Agway Coop. v Briarcliff Farms, 17 NY2d 57, 61; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404) or whenever a factual issue is "arguable" (Barrett v Jacobs, 255 NY 520, 522) or whenever the court must engage in factual "issue-determination" rather than "issue-finding" (Sillman v Twentieth Century-Fox Film Corp., supra, at p 404).

The majority is engaging in issue determination rather than issue finding when it finds that the tenant has complied with the notice to cure. Characterizing the termination notice as "premature" in a situation where there was more than a ten-month controversy involving court proceedings and access stipulations and where the landlord was under a deadline from HPD to complete the repairs is not consistent with the history of this proceeding. It appears from the record that the tenant only granted access because of the threat from the termination notice. The work has not been completed. Based upon the landlord's allegations of the past history, future access will not be provided without the termination notice still in place. The landlord is being penalized because it granted the tenant additional time after the cure period to provide access in order to amicably resolve the issues between the parties. If history repeats itself, the dispute will continue unless the termination notice remains in effect and a court proceeding looms to force a final resolution. The judgment should be reversed on both legal and pragmatic grounds. The majority has affirmed on a different ground than the motion court and I only address that ground although I also disagree with the motion court.

This constitutes the decision and order of the court.