[*1]
| 309 E. 60th St, LLC v Attallah |
| 2009 NY Slip Op 51522(U) [24 Misc 3d 1219(A)] |
| Decided on May 21, 2009 |
| Civil Court Of The City Of New York, New York County |
| Engoron, J. |
| Published by New York State Law Reporting Bureau
pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be
published in the printed Official Reports. |
Civil Court of the City of New York, New York
County
309 East 60TH St,
LLC, Petitioner-Landlord,
against
Amer Attallah d/b/a Hookah Café, Respondent-Tenant.
|
L & T 61349/2009
Arthur F. Engoron, J.
Upon the foregoing papers, it is hereby ordered that the motion to dismiss is
denied as to respondent's third affirmative defense, and, for the same reasons, the instant
proceeding is dismissed.
The dispositive legal issue in this summary holdover proceeding is whether a notice
to cure may amalgamate various facts (or conduct) and, separately, various lease provisions,
without indicating which facts allegedly constitute violations of which lease provisions.
We all remember childhood puzzles or school tests that resembled the following:
Draw a line
from each U.S. President to something for which he is well known:
1.Franklin
D. RooseveltA.The Bay of Pigs Invasion
2.John F. KennedyB.The Watergate Scandal
3.Richard M. NixonC.The Court-Packing Plan
4.George W. BushD.The War in Iraq [FN1]
The instant notice to cure, in effect, presents this same game. It lists nine lease
provisions and 11 [*2]alleged facts, without indicating which
facts violate which lease provisions. The issues this raises are whether a notice to cure must
allege specific lease provisions and, if so, whether (1) the notice must always indicate which fact
violates which provision (a per se rule); (2) the notice must only indicate which fact violates
which provision if there could be some confusion or ambiguity as to this matter (an ad hoc rule);
or (3) the notice need not indicate which fact violates which provision (the opposite per se rule).
A notice to cure is serious business. It is the first step in an attempt to end a tenancy
that may otherwise last for years or even decades, that may have a rent provision that is
significantly below market value, that may be the basis for the employment of many people, and
that may provide important services to the surrounding community. In this Court's view, a tenant
is entitled to know not just what facts allegedly constitute breaches of the lease, and which
provisions of the lease are allegedly being breached, but which facts breach which provisions.
That the notice to cure must list both the facts and the lease provisions is reasonably
well established. See generally Chinatown Apts., Inc. v Chu Cho Lam, 51 NY2d 786
(1980) (residential lease); King Party Ctr. of Pitkin Ave., Inc. v Minco Realty, LLC, 286
AD2d 373 (2d Dept 2001) (commercial lease) (notice to cure should provide, inter alia,
"the specific paragraphs in the lease with which the [tenant] allegedly failed to comply [and] (2)
the manner in which it was claimed that [tenant] had not met the requirements of those
paragraphs"); Williamsen v Bugay, NYLJ, May 13, 2009, at 28, col. 3 (Housing Ct,
Kings County) (residential lease); Finkelstein and Ferrara, Landlord and Tenant Practice in
New York § 13:13, at 13-14 (2006). Counsel for both parties say that they have not
found any authority as to whether a notice to cure with multiple facts and multiple provisions
must link the specific items.
In this Court's view, by far the better rule, for myriad reasons, is a per se rule that the
notice must always link the specific facts to the specific provisions. First, the petitioner is, of
course, in the best position to know the bases of the proceeding. Second, and related, making the
links will place almost no burden on the petitioner, whereas figuring out the links might place a
significant burden on the respondent. Third, knowing the links will help respondent prepare its
defense (and, indeed, in some case, help respondent decide whether a defense is unnecessary or
impossible). Fourth, the more specific the notice, the more likely the matter will resolve prior to
litigation. An ad hoc rule would cause needless litigation, with its attendant delay, expense,
uncertainty, and burdens on the court. Finally, a per se rule that petitioner need not delineate the
links will merely encourage petitioners to serve long laundry lists of facts and provisions and
will sow confusion on the part of respondents.
In formulating today's rule, this Court wants to be abundantly clear that perfection is
not demanded. As is the case with dollar amounts in a rent demand, lists of facts and
corresponding provisions can be somewhat inaccurate due to honest error, but as long as they are
reasonable and relatively correct they should be sustained. All a court should require is a good
faith effort to apprise the tenant of what conduct violates what provisions, so that the tenant can
make informed determinations as to how to conduct itself and how to address the lawsuit.
[*3]
As the instant notice to cure is defective, this
proceeding must be dismissed, and the Court need not and does not reach the other issues raised
by learned counsel.
Thus, the clerk is hereby directed to enter judgment in favor of respondent and
against petitioner dismissing the instant proceeding.
Dated:May 21, 2009
Arthur F. Engoron, J.C.C.
Footnotes
Footnote 1: Answer Key - 1:C; 2:A; 3:B;
4:D