BACKGROUND

This summary holdover proceeding was commenced by 238 WEST 112th STREET, HDFC (Petitioner) against HAROLD RINGER (Respondent) the tenant of record and [*2]LATRICE PEARSON(Pearson) seeking to recover possession of 238 WEST 112TH STREET, APARTMENT #3W, NEW YORK, NEW YORK 10026 (Subject Premises) based on the allegation that Respondent failed to pay rent due for the Subject Premises and has thereby violated a substantial obligation of his monthly tenancy, and that Pearson violated a substantial obligation of her tenancy by failing to provide access for repairs in May 2013.

Respondent was incarcerated from 2010 through May 2014, and upon his release resumed occupancy of the Subject Premises with Pearson who occupied the Subject Premises in his absence.

Petitioner issued two separate Notices to Cure both dated July 11, 2013. The first Notice

PLEASE TAKE NOTICE that you are violating a substantial obligation of your month to month tenancy made by and between You (Harold Ringer and/or Latrice Pearson) and 238 West 112th Street HDFC. Specifically, you have failed to pay any use and occupancy for your continued holding over in the Subject Premises. As you know a Court case was initiated against Mr. Ringer for illegal sublet, Ms. Pearson appeared and informed the court that she is living in the unit as the alleged fiancé of Mr. Ringer. Notwithstanding, Ms. Pearson's continued occupancy of the Apartment, neither Ms. Pearson nor Mr. Ringer have paid any monies towards living in the unit. Prior to the court appearance, bills were sent to Mr. Ringer at the Subject Premises prior to the landlord learning that he was incarcerated. Notwithstanding living at the Subject Premises Ms. Pearson failed to inform anyone that she was living in the apartment, and she ignored the rent/use occupancy bills.

PLEASE TAKE FURTHER NOTICE that pursuant to the law, and your obligations pursuant to your tenancy that you are required to cure the aforementioned failure to pay use and occupancy for the Apartment that Mr. Ringer wants to hold, and Ms. Pearson resides in, on or before July 27, 2013 that being at least ten (10) days from your receipt of this Notice to make full payment of the attached use and occupancy.

The second Notice to Cure provides:

PLEASE TAKE NOTICE that you are violating a substantial obligation of your month to month tenancy made by and between You (Harold Ringer and/or Latrice Pearson) and 238 West 112th Street HDFC. Specifically, you have violated a Court Decision/Order whereby you were to provide access to the unit for the purpose of making repairs therein. On May 1, 2013 the Hon. Sabrina Kraus's Decision/Order stated that Ms. Pearson appears today and consents to provide access on May 2nd , 2013, May 9, 2013 and May 16, 2013. You failed to provide access on any of the aforementioned days. To date you have refused to provide access to the apartment as required by law. Your failure to provide access causes the HDFC to be assessed fines for violations.

The notice requires Pearson to provide access on or before July 27, 2013, to cure.

Both notices provide that if Respondent and Pearson fail to cure their tenancy will be terminated and the will be required to vacate the Subject Premises.

On July 29, 2013, Petitioner issued a thirty day notice of termination, terminating Respondent's and Pearce's tenancy as of August 31, 2013. The notice of termination makes no reference to the notice to cure based on lack of access. The notice of termination asserts that Respondent is the tenant of record and treats Pearson more as an occupant or licensee of Respondent. The Notice of Termination purports to be based on chronic nonpayment.

The petition is dated March 27, 2014, close to one year after the prior Notice of Termination, and was issued by the clerk on April 2, 2014. Proof of service was filed on April 10, 2014, and the proceeding was initially returnable April 18, 2014. On the initial return date the proceeding was marked off calendar. On May 16, 2014, Petitioner's motion to restore the proceeding to the calendar was granted on default, and the proceeding restored to the court's calendar on June 24, 2014. On June 24, 2014 the proceeding was adjourned to July 29, 2014 for trial.

No answer was submitted by Respondent or Pearson and as such a general denial is deemed interposed on their behalf.

On August 6, 2014, the proceeding was assigned to Part L for trial. The trial commenced and concluded on said date, and the court reserved decision.

PRIOR RELATED PROCEEDING

There was a prior related holdover between the parties under index Number 85279/2012. In that proceeding, Petitioner issued a thirty day notice of termination dated August 17, 2012 terminating the tenancy of Respondent for subletting without the landlord's permission, profiteering, and failing to pay rent since February 2012. No Notice to Cure was served, and the petition was initially returnable November 8, 2012.

As Respondent was incarcerated the court appointed a GAL for Respondent on March 26, 2013. On May 1, 2013, Respondent appeared via video conference and the court granted Petitioner's application to discontinue the proceeding, pursuant to a written order, based on the fact that Respondent was incarcerated and the representation that Pearson was Respondent's fiancé. The order further noted that Pearson agreed to provide access on three dates in may 2013 for Petitioner to make repairs.

Petitioner is the owner of the Subject Building pursuant to a deed dated July 29, 1994 (Ex

After this lease expired there was no evidence in the record of any further lease

In April 2012, there was a fire in the apartment directly above the Subject Premises. As a result of this fire, the Subject Premises was substantially damaged (See Exs g & F) . In particular the ceilings of the Subject Premises deteriorated, in many rooms falling down altogether. Petitioner made no repairs in the Subject Premises until the spring/summer of 2014. Even then, the repairs were stopped as ECB issued a Stop Work Order for work without a permit on June 5, 2014 (Ex B).

As of June 12, 2014, there are thirty three open violations for the Subject Premises dating from 2009 forward (Ex 4). Four of these violations are Class C violations and considered immediately hazardous, the remaining violations are Class B violations. The violations confirm the testimony of Respondent and Pearson as to the condition of the Subject Premises and cover conditions including, an ongoing leak in multiple rooms in the Subject Premises, plastering and painting, unsafe electric wiring, missing doors, defective wasteline in the kitchen sink, defective wooden floors, defective entrance door, leaky faucets in the bathroom, broken gas range in the kitchen, and defective electrical fixtures in several rooms.

DISCUSSION

Petitioner failed to establish a prima facie case entitling Petitioner to a judgment of possession herein. Initially, the court notes that the predicate notices are defective. Specifically, The Notice to Cure based on failure to pay asserts that a breakdown is annexed and that Respondent and Pearson can cure the default by paying the amount in the annexed breakdown. However, no breakdown was annexed and no specific sum was sought for payment. Therefore the Notice is impermissibly vague in that it does not provide Respondent with the information necessary to cure the alleged default.

Moreover, the Notices are ambiguous in their treatment of Pearson. It is unclear if Petitioner acknowledges that Pearson has become a tenant by virtue of payment and acceptance of rent in her own name or not. The notice simultaneously discusses payment of rent and payment of use and occupancy. As use and occupancy is paid by non-tenants and rent paid by tenants this adds to the ambiguity of the Notice.

Additionally, the Notice to Cure regarding lack of access does not appear to support any claim for relief. Pearson, if not a tenant, had no tenancy to terminate and had no obligation to provide access. The court order referenced in the notice does not provide that Petitioner may terminate Respondent's tenancy if Pearson fails to comply. Since this Notice is not referenced in the Notice of Termination, and Petitioner never provided evidence that Pearson failed to comply with this Notice, the court assumes Petitioner elected not to proceed on this Notice at trial, notwithstanding the fact that it is annexed to the Petition filed with the court.

Assuming these defects in the Notices did not exist, Petitioner still would not have prevailed on this cause of action. It is well settled that where a landlord seeks to terminate a tenancy based on an allegation of chronic nonpayment of rent the landlord must generally show that it was forced to institute a number of proceedings to collect rent with a specific period of time (Adam's Tower Ltd Partnership v Richter 186 Misc 2d 620), and if the tenant shows that there were valid defenses and that a need for repair precipitated the withholding of rent a holdover petition based on chronic nonpayment will not be sustained (Bennett v Mentis NYLJ, Sept 13, 200, p.22, col.1).

In this case, the Notice of Termination alleges that two proceedings were brought against Respondent in 2005, under Index Nos 090100/05 and 61627/05 and two cases were brought in 2006 under Index Nos 90916/06 and 71115/06. The most recent of these case was instituted almost eight years prior to the date of the petition in this proceeding. Additionally, Petitioner submitted no evidence at all pertaining to these cases.

Respondent did submit evidence of Index Number 90100/05. This was a holdover proceeding dismissed after trial based on the court's finding that Respondent had established the proceeding was brought in retaliation for Respondent's instituting an HP action.^[FN1] It certainly does not support a claim of chronic nonpayment of rent.

It is clear that even if Petitioner had shown that nonpayment proceedings were necessitated to collect the rent, which it did not show at trial., defenses to the nonpayment of rent existed based on the deplorable state of the Subject Premises from May 2010 forward and Petitioner and its agents had actual knowledge of these conditions.

CONCLUSIONBased on the foregoing, the proceeding is dismissed. This constitutes the decision and order of the Court.^[FN2]

Dated: New York, New York

August 6, 2014

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