Civil Court of the City of New York, Bronx County, November 19, 2019

Mobilization for Justice (Alberto Gonzalez of counsel) for Arturo Perez, respondent.

Lazarus Karp LLP for petitioner.

After oral argument, the decision and order on this motion is as follows:

In this nuisance holdover involving a long-term rent-stabilized tenant, respondent Arturo Perez moves, inter alia, to dismiss the proceeding for petitioner's failure to serve a notice to cure upon him prior to commencing this proceeding as required by the parties' lease.^[FN1]

Respondent argues that the lease agreement between the parties' respective predecessors in interest required service of a cure notice prior to the termination notice. Relevant to the respondent's argument are both article 12 and article 17 of the lease. Article 12 defines "objectionable conduct" and creates for the tenant an obligation to refrain from engaging in it. It reads:

"As a tenant in the building, you will not engage in objectionable conduct. Objectionable conduct means behavior which makes or will make the apartment or the building less fit to live in for you or other occupants. It also means anything which interferes with the rights of others to properly and peacefully enjoy their apartments, or causes conditions that are dangerous, hazardous, unsanitary and detrimental to other tenants in the building. Objectionable conduct by you gives the owner the right to end this lease." (Respondent's exhibit I at 12 [capitalization omitted].)

Article 17 of the lease—entitled "Default"—sets out the procedure for lease termination in instances where the tenant "fail[s] to carry out any agreement or provision of the Lease," or "behaves in an objectionable manner." In relevant part, it provides:

"If [tenant does] default, owner may serve [tenant] with a written notice to stop or correct the specified default within 10 days. [Tenant] must then either stop or correct the default within 10 days . . . . If [tenant does] not stop or begin to correct a default within 10 days, owner may give [tenant] a second notice that this lease will end. [Tenant] must then move out of the apartment." (Respondent's exhibit I at 12 [capitalization omitted; emphasis added].)

In its opposition, petitioner argues that the use of the word "may" indicates that service of a notice to cure is "non-mandatory" and, therefore, that article 17 of the lease permits petitioner to serve a notice to cure but does "not impose an {**66 Misc 3d at 323}obligation upon the Petitioner" to do so. Alternatively, it argues that the basis for the termination of respondent's tenancy was not violation of the objectionable conduct clause of the lease agreement, but instead a violation of section 2524.3 (b) of the Rent Stabilization Code (9 NYCRR) allowing a termination of tenancy in the instance of nuisance.

For the reasons set forth below, respondent's motion is granted, and the petition is dismissed.

Failure to serve a proper predicate notice required by a lease is a fatal flaw to a summary proceeding requiring its dismissal. (Chinatown Apts. v Chu Cho Lam, 51 NY2d 786 [1980].) This is true even where the lease terms impose stricter notice requirements than those contained in a relevant statute or regulation. (Waring Barker Co. v Santiago, NYLJ, Jan. 23, 1998 at 15, 1998 NY Misc LEXIS 749 [App Term, 1st Dept 1998]; Hendrickson v Lexington Oil Co., 41 AD2d 672 [2d Dept 1973] [dismissing a nonpayment proceeding for failure to serve a 10-day demand for rent pursuant to the lease]; 221 E. 10th St., Inc. v Walker, NYLJ, June 3, 1992, 1992 NY Misc LEXIS 717 [Civ Ct, NY County [*3]1992].)

In the context of chronic nonpayment of rent holdovers, the appellate courts have held that service of a notice to cure is unnecessary where " 'the cumulative pattern of [a] tenant['s] course of conduct' is incapable of any meaningful cure." (326-330 E. 35th St. Assoc. v Sofizade, 191 Misc 2d 329, 330 [App Term, 1st Dept 2002], quoting Adam's Tower Ltd. Partnership v Richter, 186 Misc 2d 620, 622 [App Term, 1st Dept 2000].) The appellate courts in this department have applied this rule both where a cure notice is required by statute (see 974 Realty Corp. v Ledford, 9 Misc 2d 240 [App Term, 1st Dept 1957]), as well by the terms of a lease. (Herald Towers, LLC v Perry, 2003 NY Slip Op 50564[U] [App Term, 1st Dept 2003], revg 190 Misc 2d 500 [Civ Ct, NY County 2001]; 326-330 E. 35th St. Assoc. v Sofizade, 191 Misc 2d at 331-332.) "The fact that a lease or statute provides time for a cure does not necessarily imply that a means or method to cure must exist in every case." (Adam's Tower, 186 Misc 2d at 622 [internal quotation marks omitted], quoting National Shoes v Annex Camera & Elecs., 114 Misc 2d 751, 752 [Civ Ct, NY County 1982].)

Accordingly, deciding respondent's motion requires the court to answer two questions. The first is whether the terms of the{**66 Misc 3d at 324} lease require service of a notice to cure. If it does, the court must decide whether the behavior alleged in the termination notice is incapable of any meaningful cure consequently abrogating that requirement.

The Terms of the Lease

[1] Although the Rent Stabilization Code would not require service of a notice to cure prior to the commencement of this nuisance holdover proceeding, the parties' lease does. The petitioner's contrary arguments are not availing.

The lease's use of the word "may" before "serve [tenant] with a written notice to stop or correct the specified default within 10 days" does not empower the petitioner with the choice as to whether service of a cure notice is required before the termination; it merely empowers the petitioner with the choice as to whether to begin the process of termination of the tenancy. If the same sentence said "must," for example, as petitioner acknowledges would indicate a required act, it would impose upon the petitioner the absolute obligation to terminate the tenancy on any failure to carry out a provision of the lease or instance of objectionable behavior. Certainly, whether to do so is a matter within petitioner's prerogative. Petitioner's argument regarding what the "may" language permits is further belied by the fact that the same verb—"may"—is employed in the lease before the requirement to serve a notice to terminate. Only where the petitioner has served a notice to cure behavior that went uncorrected "may" the petitioner resort to serving a termination notice. The terms of the lease make the cure notice a condition precedent to service of the termination notice.

This result has been reached previously by courts interpreting the identical language contained in the form lease here. (See e.g. 2301 First Ave. L.P. v Ortiz, 27 HCR 368A [Civ Ct, NY County, Aug. 4, 1997, Friedman, J., index No. 69366/97]; Levister Redev. Co., LLC v May, 32 HCR 572B [Mount Vernon City Ct, 2004, Edwards, J., index No. 342/04].)

Petitioner's remaining argument that the notice to cure is not necessary because the termination herein is not based upon an alleged violation of the lease but instead premised on a violation of the Rent Stabilization Code's prohibition of "nuisance" behavior (see Rent Stabilization Code [9 NYCRR] § 2524.3 [b]) is also without merit, where, as here, the notice of termination on its face specifically states that it is made pursuant to article 17 of the lease. Moreover, as defined by the Court of Appeals, a nuisance is "a pattern of continuity or recurrence {**66 Misc 3d at 325}of objectionable conduct." (Domen Holding Co. v Aranovich, 1 NY3d 117, 124[*4][2003] [emphasis added].) A nuisance allegation necessarily involves an allegation of objectionable conduct, triggering article 17 of the lease agreement which petitioner implicitly acknowledges in the notice of termination.^[FN2] (See Waring Barker Co. v Santiago, NYLJ, Jan. 23, 1998 at 15, 1998 NY Misc LEXIS 749 [App Term, 1st Dept 1998].)

The Nature of the Alleged Conduct

In every above-cited case standing for the proposition that a cure notice is unnecessary where the alleged conduct is incapable of any meaningful cure, the issue before the court was chronic nonpayment of rent. Those cases are dissimilar from the facts here in that they necessarily involve patterns of conduct over an extended period of years—as opposed to the small number of weeks alleged here. (See e.g. 326-330 E. 35th St. Assoc. v Sofizade, 191 Misc 2d 329 [finding notice to cure not required where landlord's chronic nonpayment claim was based on 12 nonpayment proceedings over a 34-month period].)

[2] Although it was not cited by the petitioner in either its termination notice or its initial opposition papers,^[FN3] the court can locate only one case where this principle was applied to a nuisance cause of action outside of the context of chronic nonpayment. In Strata Realty Corp. v Pena, the court found that a cure notice was not required despite the language of the lease where the tenant had created a nuisance "over a substantial period [of time]" by "repeatedly filing complaints against landlord [with government agencies] relating to conditions in the apartment, resulting in the placement of violations,{**66 Misc 3d at 326} and then consistently refusing to allow landlord to make necessary repairs." (57 Misc 3d 156[A], 2017 NY Slip Op 51646[U], *1-2 [App Term, 1st Dept 2017], affd as mod 166 AD3d 401 [2018].) In affirming that portion of the Appellate Term decision, the Appellate Division wrote that the tenant's "refusal to permit petitioner to correct violations . . . had the potential to compromise the health and safety of the building's residents." (Matter of Strata Realty Corp. v Pena, 166 AD3d at 401.) In contrast, the conduct alleged here took place over the course of a relatively short period of time (40 days) and involved only the building superintendent and his wife. At oral argument, petitioner argued that the type of behavior it alleges to have occurred here is by its nature incapable of cure but has not supported this position with any decisional law. Violent, dangerous, and even illegal behavior is not per se non-curable. (See e.g. 2301 First Ave. L.P. v Ortiz, 27 HCR 368A [holding that the lease required a notice to cure an allegation of nuisance based on use of the premises for the sale of illegal drugs and prostitution]; 221 E. 10th St., Inc. v Walker, NYLJ, June 3, 1992, 1992 NY Misc LEXIS 717, *3 [Civ Ct, NY County [*5]1992] [holding that the terms of the lease required service of a cure notice prior [*6]to termination where the landlord alleged the tenant was "using or permitting his apartment (to be used) to sell and distribut(e) illegal drugs"]; Andrews-Zuck Realty v Warner, 23 HCR 601A, NYLJ, Oct. 11, 1995 at 2, col 6 [Civ Ct, Bronx County 1995] [dismissing a nuisance proceeding for failure to serve a notice to cure required by the lease where the respondent was alleged to have engaged in a number of dangerous and illegal behaviors, including the throwing of belongings out of the windows and onto public spaces and assaulting other residents with screaming threats].)

Accordingly, the court cannot hold here that the alleged behaviors were completely incapable of any meaningful cure. Although petitioner has stated that the alleged behavior caused its superintendent to resign from his position, in reaching its determination, the court cannot overlook the fact that the petitioner has at no time alleged that this behavior has continued—or, ever before occurred—against any other member of its staff or resident of the subject building.^[FN4] The acts alleged are not at all like the appellate cases in the chronic nonpayment context or even Strata Realty Corp.—all of which involved {**66 Misc 3d at 327}behaviors that took place over a substantial period of years and involved repeated acts. Although a person cannot "undo" an act of vandalism or assault, one can refrain from engaging in those behaviors in the future. This is the meaning of cure which the lease contemplates in allowing a tenant an opportunity to "stop . . . the default within 10 days." (Respondent's exhibit I at 17 [emphasis added].)

Neither can the court overlook the fact that it was the petitioner, by its predecessor, who adopted the terms of the form lease in question here and presented it to respondent for execution. The court is thus bound to strictly construe these terms against petitioner and resolve any "uncertainty in the lease . . . against the landlord." (151 W. Assoc. v Printsiples Fabric Corp., 61 NY2d 732, 734 [1984].)

Accordingly, because petitioner failed to serve a notice to cure in contravention of the requirements of the lease, it is hereby ordered that respondent's motion to dismiss the proceeding for petitioner's failure to provide him with the opportunity to cure as required by the lease is granted. In view of this holding, the court need not address the respondent's remaining arguments.

"is committing or permitting a nuisance in such housing accommodation or the building containing such housing accommodation; or is maliciously, or by reason of gross negligence, substantially damaging the housing accommodation; or the tenant engages in a persistent and continuing course of conduct evidencing an unwarrantable, unreasonable or unlawful use of the property to the annoyance, inconvenience, discomfort or damage of others, the primary purpose of which is intended to harass the owner or other tenants or occupants of the same or an adjacent building or structure by interfering substantially with their comfort or safety."