Civil Court of the City of New York, Queens County, July 17, 2023

New York Legal Assistance Group (Zara Feingold of counsel) for Juliane Williams, respondent.

Daniels Norelli Cecere & Tavel P.C. (Denise May of counsel) for petitioner.

The court's decision and order is as follows:

Petitioner Columbia Leasing L.P. (petitioner) commenced this breach of lease holdover pursuant to Rent Stabilization Code (9 NYCRR) § 2524.3 (a) against Juliane Williams (respondent) by filing of a notice of petition and petition on June 29, 2022. Prior to commencement, petitioner served a notice to cure affording respondent until May 31, 2022, to cure an alleged clutter condition in her apartment. The notice to cure contains six paragraphs, all related to an incident on May 5, 2022, during which petitioner's staff observed a carpet in the hallway of the subject premises and a partially ajar door evidencing an accumulation of items "covering the apartment and stacked throughout." Petitioner subsequently served a notice {**80 Misc 3d at 886}of termination dated June 2, 2022, which duplicates the language in the notice of cure with the following addition: "You have been advised to correct these conditions but to date nothing has been resolved."

Respondent interposed an answer on November 4, 2022, and now moves to dismiss pursuant to CPLR 3211 on two primary grounds. First, respondent argues that petitioner failed to timely file the affidavit of service of the petition and notice of petition pursuant to Real Property Actions and Proceedings Law § 735 (2). Second, respondent argues that the predicate termination notice is defective for lack of specific allegations relating to respondent's failure to cure after expiration of the cure period. Petitioner opposes the motion.^[FN1]

Compliance with RPAPL 735 (2)

RPAPL 735 (2) requires the filing of an affidavit of service of the petition and notice of petition within three days after service is effectuated. Here, petitioner filed the affidavit of service on September 7, 2022, 12 days after completing service on August 26, 2022, seemingly a violation of the statute notwithstanding the lack of any demonstrable prejudice.

In arguing for dismissal, respondent relies on the First Department's holding in Riverside Syndicate, Inc. v Saltzman (49 AD3d 402 [1st Dept 2008]). In Saltzman, the Appellate Division concluded that because summary eviction proceedings are special proceedings "governed entirely by statute . . . and it is well established that there must be strict compliance with the statutory requirements to give the court jurisdiction" the failure to comply with RPAPL 735 (2) requires dismissal (id. at 402 [citations omitted]).^[FN2] Saltzman remains the law in the First Department (see 125 E. 50th St. v Credo Intl. Inc., 75 Misc 3d 134[A],{**80 Misc 3d at 887} 2022 NY Slip Op 50504[U] [App Term, 1st Dept 2022], lv denied 2022 NY Slip Op 73253[U] [1st Dept 2022]).[*2]

Three years after Saltzman, the Appellate Term in the Second Department set forth a different rule in Siedlecki v Doscher (33 Misc 3d 18, 20 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). In Siedlecki, the Appellate Term held that "the Appellate Division in [the Second Department] has rejected the 'strict compliance' approach to jurisdiction in summary proceedings" (id. at 20 [citations omitted]). As a result, the Appellate Term concluded that because personal jurisdiction attaches upon delivery and mailing of the petition rather than the filing of an affidavit of service, an untimely filing is a non-prejudicial irregularity that can be disregarded pursuant to CPLR 2001 (id.).

The dueling Saltzman and Siedlecki holdings have placed the trial courts in the Second Department in a predicament. Under the doctrine of hierarchical stare decisis "state trial courts are bound to follow existing precedent of a higher court" (People v Rivera, 5 NY3d 61, 72 n 2 [2005, Kaye, Ch. J., dissenting]). Here, one such court is the Appellate Term for the Second, Eleventh and Thirteenth Judicial Districts of the Second Department, the court of direct appeal for the Queens County Civil Court, whose holding in Siedlecki is therefore binding (see 22 NYCRR 730.1 [b] [1]; People v Pena, 36 NY3d 978, 988 n 4 [2020, Wilson, J., dissenting], citing People v Pestana, 195 Misc 2d 833, 839 [Crim Ct, NY County 2003]). Yet, it is also true that unlike the Appellate Terms, which serve at the leisure of their respective Appellate Divisions (see NY Const, art VI, § 8), the Appellate Divisions are statewide courts, whose precedents are binding on all trial courts in the absence of a contrary holding by the Appellate Division in their designated judicial department (see Mountain View Coach Lines v Storms, 102 AD2d 663, 664 [2d Dept 1984]). This has led some trial courts to conclude that "arguably, the Second Department should [follow Saltzman] too" with respect to RPAPL 735 (2) (McManus v Condren, 76 Misc 3d 1226[A], 2022 NY Slip Op 51057[U], *4 [Civ Ct, NY County 2022]).

[1] The court does not have a satisfactory solution for this conundrum. On the one hand, Saltzman has not been revisited{**80 Misc 3d at 888} by any of the Appellate Divisions and presumably remains binding on all trial courts based on the Appellate Division's Mountain View Coach Lines reasoning. On the other, when considering competing higher court holdings, the lower courts are generally instructed to follow the "more recent precedent" (Johnson v New York City Tr. Auth., 88 AD3d 321, 326 [1st Dept 2011]). Moreover, the Appellate Term in Siedlecki specifically considered and rejected Saltzman's strict compliance approach as out of line with Appellate Division precedent in the Second Department.^[FN3] Thus, for the court to disregard Siedlecki would effectively require substituting its own reasoning for that of a higher court of direct appeal, a step this court is ultimately unwilling to take in the absence of further guidance from the appellate [*3]courts. Accordingly, the court will continue to treat Siedlecki as binding precedent and must deny respondent's motion given the lack of any identifiable prejudice as a result of petitioner's late filing of the affidavit of service.

Sufficiency of Petitioner's Termination Notice

Respondent argues that petitioner's notice of termination is facially defective for failing to allege specific evidence that the clutter condition in respondent's apartment continued after expiration of the cure period. Respondent further argues the temporal proximity between the notice to cure and the notice of termination, the latter of which was prepared only two days after the cure period ended, is evidence of a lack of a good-faith effort by petitioner to determine if a cure was effectuated. Respondent's position derives principally from the Civil Court's holding in Hew-Burg Realty v Mocerino (163 Misc 2d 639, 641 [Civ Ct, Kings County 1994]), and the Appellate Term's decision in 31-67 Astoria Corp. v Landaira (54 Misc 3d 131[A], 2017 NY Slip Op 50034[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).{**80 Misc 3d at 889}

In assessing the adequacy of a predicate notice, "the appropriate test is one of reasonableness in view of the attendant circumstances" (Hughes v Lenox Hill Hosp., 226 AD2d 4, 18 [1st Dept 1996], lv dismissed & denied 90 NY2d 829 [1997]; see also Tzifil Realty Corp. v Rodriguez, 73 Misc 3d 138[A], 2021 NY Slip Op 51162[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]).

In the context of a nuisance holdover based on objectionable conduct, a landlord need not serve a notice to cure prior to commencement (see Rent Stabilization Code [RSC] [9 NYCRR] § 2524.3 [b]). Moreover, the predicate termination notice, while requiring a certain level of detail, need not itemize every incident so long as the notice "adequately apprised [the respondent] as to the grounds upon which it was based, allowing them to prepare a legal defense" (Domen Holding Co. v Aranovich, 1 NY3d 117, 125 [2003]).

By contrast, where a landlord of a rent-stabilized apartment elects to treat objectionable conduct as curable by serving a notice to cure, the Rent Stabilization Code requires the landlord to establish that the tenant "has failed to cure such violation after written notice by the owner that the violations cease within 10 days" (RSC § 2524.3 [a]). For this reason, the Civil Court in Hew-Burg concluded that a termination notice is defective where it lacks any "factual allegations that the course of conduct complained of continued beyond the cure period" (Hew-Burg Realty v Mocerino, 163 Misc 2d 639, 641 [Civ Ct, Kings County 1994]). The Hew-Burg decision has been widely if not universally adopted by the lower courts (see e.g. 2186 Realty NY LLC v Martinez, 2022 NY Slip Op 31054[U] [Civ Ct, NY County 2022]; Fen Xiu Chen v Salvador, 71 Misc 3d 1225[A], 2021 NY Slip Op 50499[U] [Civ Ct, Queens County 2021]; Rochdale Vil., Inc. v Stone, 66 Misc 3d 737 [Civ Ct, Queens County 2019]; Sudimac v Beck, 63 Misc 3d 1208[A], 2019 NY Slip Op 50499[U] [Civ Ct, Queens County 2019]; 2704 Univ. Ave. Realty Corp. v Thompson, 63 Misc 3d 1222[A], 2019 NY Slip Op 50652[U] [Civ Ct, Bronx County 2019]; cf. Riverbay Corp. v Frere, 79 Misc 3d 1218[A], 2023 NY Slip Op 50655[U] [Civ Ct, Bronx County 2023]; 1123 Realty LLC v Treanor, 62 Misc 3d 326 [Civ Ct, Kings County 2018]).

Hew-Burg was first cited by an appellate court over two decades after it was decided in 31-67 Astoria Corp. v Landaira (54 Misc 3d 131[A], 2017 NY Slip Op 50034[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). Landaira was a {**80 Misc 3d at 890}combined breach of lease and nuisance holdover premised on detailed allegations of a clutter condition in a 10-day notice to cure, which, like the notice at issue in this proceeding, purported to require the tenant to contact the landlord to coordinate access to determine if the condition was remedied. After serving the notice to cure, the petitioner served a termination notice one day after expiration of the cure period without stating whether the respondent had cured or citing to any new facts. The lower court dismissed the proceeding [*4]noting that the petitioner "did nothing to determine if a cure occurred" and merely "presumed there would be a default and simply served a notice of termination after the notice to cure expired" (31-67 Astoria Corp. v Landaira, Civ Ct, Queens County, Apr. 17, 2015, Lansden, J., index No. 64908-14/QU). In affirming the decision, the Appellate Term held that "the termination notice was defective because it failed to allege that the defaults specified in the notice to cure, which were curable, had not been cured during the cure period" (Landaira, 54 Misc 3d 131[A], 2017 NY Slip Op 50034[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

While one reading of Landaira is that it affirmed the lower court's dismissal solely because the landlord did not state in the termination notice that the conduct had not been cured, this court does not read the holding so narrowly for lack of such "boilerplate language" (2704 Univ. Ave. Realty Corp. v Thompson, 63 Misc 3d 1222[A], 2019 NY Slip Op 50652[U], *3 [Civ Ct, Bronx County 2019]), given that the Appellate Term cited approvingly to Hew-Burg. Rather, the court interprets Landaira as consistent with the many trial court holdings that have held that where a landlord treats conduct as curable, it must recite specific post-cure evidence that the conduct remains uncured in the termination notice (see also Tomfol Owners Corp. v Hernandez, 201 AD3d 453, 454 [1st Dept 2022] [utilizing analogous reasoning in affirming dismissal of ejectment action in cooperative unit based on objectionable conduct where proprietary lease provided for cure period and the board failed to allege "new allegations about defendant's conduct arising after service of (the notice to cure)"]).

In concluding that a landlord must recite factual allegations after the cure period in a termination notice, this court does not intend to suggest the required showing will be identical in all cases. Whereas proceedings based on an intermittent course of conduct such as unlawful subletting likely require pleading{**80 Misc 3d at 891} specific evidence of post-cure infractions (see e.g. Jericho Project Lessee v Marte-Travera, 67 Misc 3d 1204[A], 2020 NY Slip Op 50391[U] [Civ Ct, Bronx County 2020]), in proceedings involving a long-standing static condition where the evidence may be in the exclusive control of the respondent, such as clutter cases, a lower showing may suffice provided the petitioner makes a good-faith effort to ascertain if the condition has been cured. For instance, in Riverbay Corp. v Frere, the court concluded that the petitioner's allegation that "management observed no activity which would indicate you had taken any steps to comply with the Notice, and the presumption of continuance" while less detailed than ideal, was reasonable under the attendant circumstances in a clutter case (2023 NY Slip Op 50655[U], *3 [Civ Ct, Bronx County 2023]).

Another consideration in assessing the reasonableness of a notice of termination is its temporal proximity to the conclusion of the cure period. In Landaira, the termination notice was prepared only a day after the cure period concluded, evidence that petitioner treated the failure to cure as a fait accompli (see also 2704 Univ. Ave. Realty Corp. v Thompson, 63 Misc 3d 1222[A], 2019 NY Slip Op 50652[U], *4 [Civ Ct, Bronx County 2019] [service of termination notice two days after cure period ended following holiday weekend "indicat(ed) a lack of good faith in that little to no investigation at all took place to ascertain" whether a cure was effectuated]; Sudimac v Beck, 63 Misc 3d 1208[A], 2019 NY Slip Op 50442[U] [Civ Ct, Queens County 2019] [same]), whereas in Frere the termination notice was issued over two months after the expiration of the cure period (Frere, 2023 NY Slip Op 50655[U], *1; see also Jericho Project Lessee v Marte-Travera, 67 Misc 3d 1204[A], 2020 NY Slip Op 50391[U], *4 [Civ Ct, Bronx County 2020] ["That the termination notice is dated almost three weeks after the end of the cure period indicates that Petitioner did not treat it as a 'mere formality' "]).

[2] In the case at bar, the termination notice was served only two days after expiration of the cure period. Moreover, the notice did not include any post-cure facts or reflect even minimal [*5]efforts by petitioner to determine if respondent cured the alleged clutter condition. Under these circumstances, the termination notice did not meet the requirements of RSC § 2524.3 (a) and was not reasonable under the attendant circumstances. As a defective predicate notice is non-amendable, this proceeding must therefore be dismissed (see Chinatown{**80 Misc 3d at 892} Apts. v Chu Cho Lam, 51 NY2d 786 [1980]; Bray Realty, LLC v Pilaj, 59 Misc 3d 130[A], 2018 NY Slip Op 50426[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).

For the foregoing reasons, respondent's motion to dismiss is granted and this proceeding is dismissed without prejudice.