Civil Court of the City of New York, Queens County, March 10, 2020

Queens Legal Services, Jamaica (Lino Diaz of counsel), for Aurelinda A. Cuevas, respondent.

Drucker & Mattia, PLLC, Jackson Heights (Noah R. Drucker of counsel), for petitioner.

  Review of respondent's motion to dismiss pursuant to CPLR 3211 (a) (2) and (7), or in the alternative, for leave to file an answer pursuant to CPLR 2004 and 3012 (d): The decision and order on respondent's motion is as follows:

This holdover proceeding is predicated on a 30-day notice terminating a month-to-month tenancy. The petition alleges that respondent is a month-to-month tenant pursuant to an "agreement between Respondent as tenant and Petitioner as landlord." At the first court date, October 30, 2019, the proceeding was adjourned to November 13, 2019, for respondent to seek counsel through the Universal Access program. Prior to the November 13th court date, Queens Legal Services appeared as counsel for respondent and served a motion to dismiss, or in the alternative, for leave to file an answer. Following an additional adjournment for submission of opposition and reply, the court heard argument on respondent's motion on December 10, 2019, and reserved decision.

Motion to Dismiss

Respondent moves to dismiss pursuant to CPLR 3211 (a) (2) and (7) on the basis that petitioner improperly served a 30-day notice and argues that respondent was entitled to at least a 60-day notice under Real Property Law § 226-c, which came into effect as part of the Housing Stability and Tenant Protection Act of 2019 (HSTPA) (L 2019, ch 36). Annexed to the motion is an affidavit of Aurelinda Cuevas. Ms. Cuevas states in her affidavit that she has lived in the subject building since 2007, and has lived in the basement since June 2018. Petitioner{**67 Misc 3d at 616} opposes the motion to dismiss, primarily arguing that since petitioner did not purchase the subject building until November 19, 2018 (and annexes a deed to that effect), respondent's tenancy with petitioner could only have commenced at that time. Accordingly, petitioner argues, respondent's relevant tenancy had a duration of less than a year when this proceeding was commenced, so respondent was only entitled to a 30-day notice under Real Property Law § 226-c.

 As an initial matter, the notice terminating a month-to-month tenancy in the City of New York is governed by Real Property Law § 232-a (also amended by the HSTPA), which references Real Property Law § 226-c. The amended Real Property Law § 232-a, which became effective on October 12, 2019, states in relevant part that

"[n]o monthly tenant, or tenant from month to month, shall hereafter be removed from any lands or buildings in the city of New York on the grounds of holding over the tenant's term unless pursuant to the notice period required by subdivision two of section two hundred twenty-six-c of this article . . . the landlord or the landlord's agent serve upon the tenant . . . a notice in writing to the effect that the landlord elects to terminate the tenancy and that unless the tenant removes from such premises on the day designated in the notice, the landlord will commence summary proceedings under the statute to remove such tenant therefrom" (see L 2019, ch 36, § 1, part M, §§ 6, 29).

Real Property Law § 226-c (2) (a) governs notices of renewal of leases with rent increases of five percent or more and non-renewal of leases, and requires the notices to be for the "cumulative amount of time the tenant has occupied the residence or the length of the tenancy in each lease, whichever is longer" (see L 2019, ch 36, § 1, part M, §§ 3, 29). For tenancies of less than one year, a 30-day notice is required; for tenancies/leases of at least one year but less than two years, a 60-day notice is required; for tenancies/leases of at least two years, a 90-day notice is required (Real Property Law § 226-c [2] [b], [c], [d]).

Here, there are two matters to be decided. The first is whether the amended Real Property Law § 232-a applies to this proceeding. Real Property Law § 232-a, as amended by the HSTPA, "shall take effect on the one hundred twentieth day after this act shall have become a law" (see L 2019, ch 36, § 1, part M, § 29). The 120th day after the HSTPA became law{**67 Misc 3d at 617} (June 14, 2019) was October 12, 2019.^[FN1] The determination of whether the immediate proceeding was commenced before or after the effective date of Real Property Law § 232-a is complicated by the fact that the index number was purchased and the petition was filed on October 8, 2019, yet the notice of petition and petition were served and proof of service and the notice of petition were filed after October 15, 2019 (conspicuous place service was completed with mailings on Oct. 17, 2019, and proof of service and notice of petition were filed on Oct. 18, 2019). Under New York City Civil Court Act § 400 (1),

"[a] special proceeding is commenced by filing a notice of petition and petition or order to show cause and petition. For purposes of this section, . . . filing shall mean the delivery of the . . . notice of petition and petition or order to show cause and petition to the clerk of the court in the county in which the action or special proceeding is brought together with any fee required by section nineteen hundred eleven of this act."

However, the Appellate Term, Second Department, has held that the time of "commencement" of a summary proceeding is dependent upon "the context in which the question arises." (92 Bergenbrooklyn, LLC v Cisarano, 50 Misc 3d 21, 24, 25 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015].) In 92 Bergenbrooklyn, LLC, the issue was the proper commencement date with regard to a vitiation defense based on acceptance of rent after service of a notice of termination; in that context, the Appellate Term held that commencement "should [be] keyed to service" of the notice of petition and petition since "both the landlord and the tenant must be on notice, when rent is accepted, of the commencement." (50 Misc 3d at 25-26.) The Appellate Term also observed that tying commencement to service of the notice of petition and petition is supported where "a surrender by a tenant after the commencement of the proceeding will terminate the tenancy, because the service of a petition gives the tenant 'an option to consider the lease cancelled and to vacate the premises' " (50 Misc 3d at 25). In the instant proceeding, there is a similar basis for tying commencement to service of the notice of petition and petition. Only when a respondent has been served with the notice of petition and petition is he or she put on notice that the landlord is proceeding{**67 Misc 3d at 618} with an eviction and only then are both parties apprised of the nature of the notice that serves as the predicate (and able to assess the notice in relation to the law then in effect). Accordingly, the court holds that for the purposes of determining the applicability of the amended Real Property Law § 232-a (and Real Property Law § 226-c, which became effective at the same time), "commencement" occurs upon service of the notice of petition and petition.^[FN2] (See 92 Bergenbrooklyn, LLC.) Since service of the notice of petition and petition here was completed on October 17, 2019, the amended Real Property Law § 232-a and its notice requirements apply herein. (See Denis v Fisher; see also Sukaj Group LLC v Mallia, 66 Misc 3d 1223[A], 2020 NY Slip Op 50218[U] [Civ Ct, Bronx County 2020].)

The second matter to be decided, then, is whether respondent was entitled to a notice of greater than 30 days under the amended Real Property Law § 232-a. Respondent submits an unrebutted affidavit that she has resided in the subject apartment since June of 2018 (and has resided in the building since approximately 2007). Petitioner does not specifically dispute the length of respondent's tenancy; instead, solely through an attorney affirmation, petitioner argues that it could only have granted respondent permission to reside in the premises upon its taking ownership in November 2018 (which was less than one year before the commencement of this proceeding). However, nowhere in the plain language of Real Property Law §§ 232-a or 226-c are its respective provisions limited to leases or occupancies with current landlords. Moreover, it is a "well-established principle that an owner's rights and remedies run with the land and may be assumed by a new owner." (815 Park Owners v West LB Admin., 119 Misc 2d 671, 673 [Civ Ct, NY County 1983], citing Real Property Law § 223, and Matter of 507 Madison Ave. Realty Co., Inc. v Martin, 200 App Div 146, 150-151 [1st Dept 1922].) There is no affidavit from any representative of petitioner or other proof denying that respondent's month-to-month tenancy was assumed by petitioner upon the transfer of ownership. Therefore, petitioner's argument that any period of tenancy prior to its ownership should not be counted for Real Property Law §§ 232-a and 226-c purposes is {**67 Misc 3d at 619}unavailing. As a result, the 30-day notice of termination that serves at the predicate for this proceeding is defective insofar as the unrebutted length of respondent's tenancy exceeded one year at the time that this proceeding was commenced. Respondent was entitled to at least a 60-day notice of termination pursuant to Real Property Law §§ 232-a and 226-c. Since a defective predicate notice may not be amended (see Chinatown Apts. v Chu Cho Lam, 51 NY2d 786 [1980]), respondent's motion to dismiss pursuant to CPLR 3211 (a) (7) is granted and this proceeding is dismissed for the reasons set out herein. Respondent's motion for leave to file an answer is denied as moot and without prejudice.