Respondents, Xiu Ling Ni and Zhu Ping Wu, were served with a termination notice dated September 10, 2009, asserting that the subject apartment is not their primary residence. The notice alleges that respondents "have not been seen at the subject premises" and "have abandoned the subject premises and allowed Zhi M. Wu to occupy the subject premises." Petitioner now moves for use and occupancy and disclosure, while respondents cross-move to dismiss the petition. The motion to dismiss is granted because the termination notice states the legal ground for an eviction but does not allege "facts necessary to establish the existence of such ground," as required by Rent Stabilization Code [9 NYCRR] (RSC) § 2524.2 (b). (See London Terrace Gardens, L.P. v Heller, 2009 NY Slip Op 29431 [App Term, 1st Dept Oct. 23, 2009].)

In Heller, the tenant of a rent-controlled apartment was served with a termination notice for allegedly not spending more than 183 days in his apartment. According to the notice in Heller, unidentified building employees alleged that they had not seen the tenant for more than a year. (See id. at *1.) This court granted the tenant's motion to dismiss, and the Appellate Term, First Department, affirmed. The Appellate Term found that "the termination notice was too generic and conclusory to satisfy the requirements of [the] New York City Rent and Eviction Regulations" (id. at *1) because it failed to " state . . . case-specific facts tending to establish this particular tenant's alleged non-primary residence.'" (Id., quoting Price v Chelsmore Apts., NYLJ, Mar. 8, 1996, at 25, col 2 [App Term, 1st Dept].)

The subject apartment here is rent stabilized, not rent controlled as in Heller. But this does not change the outcome of this proceeding. A termination notice for a rent-controlled apartment falls under the same standard as the Rent Stabilization Code for a rent-stabilized apartment. According to the New York City Rent and Evictions Regulation (9 NYCRR) § 2204.3 [*2](b), a notice to vacate an apartment in a nonprimary-residence proceeding also requires "facts necessary to establish the existence of such ground."

Petitioner alleges that respondents' apartment is not their primary residence, but petitioner does not state any specific facts that would establish grounds to terminate respondents' lease. Using the double-passive voice, petitioner alleges that respondents have not been seen at the subject premises and have abandoned it, yet petitioner offers no details about who did not see respondents, in what capacity they were not seen, or when they were not seen.^[FN1] Nor does petitioner address the frequency of respondents' supposed absence or provide any information regarding respondents' alleged alternate address, if any. As insufficient as the notice was in Heller, it was more specific than then the one here. In Heller, the notice mentioned building personnel; the notice here does not offer even that specificity. The notice in Heller also alleged that the tenant had not been seen for more than a year; the notice here does not offer that precision, either.

Respondents' motion to dismiss is granted, and petitioner's motions for use and occupancy and disclosure are denied as academic.

This opinion is the court's decision and order.

Dated: July 15, 2010

J.H.C.