Civil Court of the City of New York, Bronx County, September 16, 2025

OPINION OF THE COURT

Diane E. Lutwak, J.

For the reasons stated below, petitioner's motion is granted in part, respondent's cross-motion is granted, and this proceeding is dismissed, without prejudice.

Procedural History and Factual Background

This is a residential holdover eviction proceeding commenced by petition filed December 3, 2024, alleging that the apartment {**88 Misc 3d at 722}is not subject to rent regulation because it is in a building with less than six units; respondent's tenancy was terminated effective November 30, 2024, by a 90-day notice; and the apartment is exempt from the provisions of the New York State Good Cause Eviction Law (GCEL), Real Property Law article 6-A and Real Property Law § 231-c, "because Respondents have an outstanding balance of unpaid rent/use and occupancy as of the date of this petition." (Petition ¶ 10.) Attached to the petition are the following:

• 90-day notice dated August 26, 2024, alleging as the grounds for termination, "no current lease is in effect."

• "Notice to Tenant of Applicability or Inapplicability of the [GCEL]" indicating that (1) the apartment is not subject to the GCEL; and (2) the apartment is exempt from the GCEL because it is owned by a "small landlord" as defined in Real Property Law § 211 (3); and (3) while the apartment is subject to the GCEL, there is good cause for nonrenewal of the lease because the tenant is violating a substantial obligation of their tenancy and failed to cure the violation after written 10-day notice constituting good cause for eviction under Real Property Law § 216 (1) (b).

• Affidavit of service of the termination notice.

The case was calendared in an Intake Part on February 5, 2025, then transferred to a Resolution Part and adjourned several times. Respondent retained counsel who filed an answer raising three objections in point of law: (1) improper pleading of the GCEL's "small landlord" exemption; (2) failure to append to the termination notice the GCEL notice required by Real Property Law § 231-c; and the GCEL notice that petitioner did provide indicated nonrenewal of the lease due to violation of a substantial obligation of the tenancy as grounds for eviction, without asserting facts or mentioning this in either the petition or the termination notice; and (3) waiver of the right to proceed by filing a subsequent nonpayment eviction proceeding, LT-303555-25/BX. The answer also raises breach of the warranty of habitability as an affirmative defense and counterclaim and a counterclaim for attorneys' fees. After unsuccessful settlement negotiations, the case was transferred to a Trial Part.

[*2]

Petitioner now moves for an order "amending the grounds under the Good Cause Eviction Law," arguing that leave to {**88 Misc 3d at 723}amend a pleading or correct a mistake should be freely granted under CPLR 3025 (b) and/or 2001. The proposed amended petition (NY St Cts Elec Filing [NYSCEF] Doc No. 15, exhibit 1) seeks to amend paragraph 10 of the original petition to substitute as the reason for exemption from the GCEL: "because Respondents have engaged in a nuisance and have refused the owner access to make repairs." Petitioner's counsel also seeks an order "deeming the petition amended, nunc pro tunc, to remove the checkmark from Paragraph 2 (B) in Petitioner's filed Notice to Tenant of the Applicability of the [GCEL]." (Affirmation of petitioner's atty ¶ 2.)

Attached to the proposed amended petition is a revised "Notice to Tenant of Applicability or Inapplicability of the [GCEL]." In a supporting affirmation, petitioner's agent refers to a "clerical error" in that "the petition herein, specifically ¶ 2 (B) of the Notice of the Applicability of the GCEL contained within the petition, inadvertently reflected the subject unit as exempt from the GCEL because the unit is owned by a 'small landlord.' " Petitioner's agent goes on to describe "the ongoing nuisance created by Respondent" constituting good cause for eviction, specifically,

"Respondent has created numerous leaks as a result of her improper use of a window placed AC unit . . . has withheld access to us in order to make inspections and repairs . . . [and has] stored motorcycles and motorcycle parts in the common areas of the building and the front of the building . . . which restricts other tenants' ability to navigate through the common areas" (affirmation of petitioner's agent ¶¶ 7, 8, 9, 10), and asserts that this conduct "occurs year round and continues unabated" (id. ¶ 11).

Petitioner asserts that the proposed amendment is not prejudicial to respondent and "merely goes to correct the inadvertent checkmark mistakenly reflecting Petitioner as exempt" from the GCEL (affirmation of petitioner's atty ¶ 15), and it seeks to correct this to reflect that the premises are subject to the GCEL and "to clarify that Petitioner is not renewing the lease because the tenant has engaged in a nuisance and Petitioner has a basis to maintain this proceeding under RPL § 216 (1)" (id. ¶ 16). Petitioner argues that "voluminous case law" interpreting the application of the GCEL supports its request for leave to amend, citing to Doc Realty Mgt. Inc. v Morales (85 Misc 3d 389 [Civ Ct, Queens County 2024]); {**88 Misc 3d at 724}Emerald Green Phase II L.P. v Rivera (86 Misc 3d 1211[A], 2025 NY Slip Op 50916[U] [Civ Ct, Kings County 2025]); and 1372 Shakespeare Ave HDFC v Perez (2025 NY Slip Op 35257[U] [Civ Ct, Bronx County 2025]).

Alternatively, petitioner asks the court to permit the correction of its mistake or to disregard it under CPLR 2001, again arguing that the petitioner's "inadvertent clerical error did not and does not prejudice Respondent." (Affirmation of petitioner's atty ¶ 18.)

Respondent opposes petitioner's motion, pointing out that the GCEL's notice provisions under Real Property Law § 231-c took effect August 18, 2024, before the date of the 90-day termination notice on which this proceeding is based, and petitioner does not address this rule in its motion papers which instead only cite to the body of case law addressing amendment of pleadings. Respondent argues that "predicate notices, unlike pleadings, are not subject to amendment." (Affirmation of respondent's atty ¶ 20.) Respondent also argues that petitioner seeks to amend its [*3]pleadings "to incorporate an entirely new basis for the proceeding" (id. ¶ 26), the alleged nuisance behavior is not mentioned in the 90-day termination notice that was served over a year ago, and it would be prejudicial to allow the proposed amendment. While the original Real Property Law § 231-c notice cites nonrenewal of the lease because of the tenant's alleged violation of a substantial obligation of the tenancy as good cause for eviction, it does not indicate any details of the alleged violation or that the required written 10-day notice to cure was provided.

Respondent asserts that no Real Property Law § 231-c notice was attached to the termination notice she received (respondent's affirmation ¶ 3), and cross-moves for summary judgment and dismissal of this proceeding both for this reason and because the Real Property Law § 231-c notice attached to the petition is defective on its face and unamendable. Respondent also denies the allegations in petitioner's agent's affirmation regarding alleged nuisance behavior.

In opposition to respondent's cross-motion petitioner argues that there are material issues of fact; that the Real Property Law § 231-c notice was attached to the termination notice; while the Real Property Law § 231-c notice stated the incorrect grounds it was sufficient to put respondent on notice that petitioner had good cause to terminate her tenancy; nuisance is an authorized good cause ground for eviction; and respondent's {**88 Misc 3d at 725}denial of the alleged nuisance conduct does not warrant granting her summary judgment.

In reply, respondent argues that petitioner raised no material issues of fact to rebut her assertion that no Real Property Law § 231-c notice was attached to the termination notice she received—pointing to the process server's affidavit of service of the termination notice which does not mention service of the Real Property Law § 231-c notice—and, even if there is a question of fact on this issue, petitioner concedes the notice was defective as it is now trying to amend it.

Discussion

Good Cause Eviction Law

Article 6-A of the New York State Real Property Law (L 2024, ch 56, § 1, part HH), known as the Good Cause Eviction Law (GCEL), was enacted in 2024, with an effective date of April 20, 2024, for some of its provisions and an effective date 120 days later—August 18, 2024—for others. The GCEL has been described as "the most comprehensive expansion of rent regulation in New York in half a century," offering "significant new eviction protections to tenants in covered dwellings, including most residential housing accommodations built before 2009 where the landlord owns, either directly or indirectly, more than 10 units of housing within New York State," and providing that a

"GCEL-protected tenant can no longer be evicted in a no grounds holdover and can only be removed from possession based on one of the good cause grounds enumerated in Real Property Law § 216 (1) (a)-(j) 'upon order of a court of competent jurisdiction entered in an appropriate judicial action or proceeding' (Real Property Law § 216 [1])." (1719 Gates LLC v Torres, 85 Misc 3d 906, 907 [Civ Ct, Queens County 2024].)

The GCEL prohibits landlords from recovering possession of covered housing accommodations except for good cause (Real Property Law §§ 215, 216), and lists 10 grounds constituting good cause for eviction, summarized as follows: (a) tenant's failure to pay rent due and owing; (b) tenant's violation of a substantial obligation of the tenancy or breach of the landlord's rules and regulations, and failure to cure within 10 days after written notice; (c) tenant's creation of a [*4]nuisance; (d) tenant's occupancy is in violation of law for which the landlord is subject {**88 Misc 3d at 726}to civil or criminal penalties; (e) tenant's use of the premises for an illegal purpose; (f) tenant's unreasonable refusal to provide access to the landlord; (g) landlord seeking to recover possession for their own or specified family members' personal use; (h) landlord seeking to demolish the premises; (i) landlord seeking to remove the premises from the rental market; and (j) tenant's failure to agree to reasonable changes to a lease at renewal, including reasonable rent increases as defined in the statute. (Real Property Law § 216 [1] [a].) The GCEL exempts certain types of housing accommodations from its coverage, including premises owned by a "small landlord" (Real Property Law § 214 [1]), as defined in Real Property Law § 211 (3) (a).

In Real Property Law § 231-c the GCEL prescribes the text of a notice (the Real Property Law § 231-c notice) landlords must give tenants, to indicate the GCEL's applicability or inapplicability. The Real Property Law § 231-c notice must be appended to or incorporated into "any initial lease, renewal lease, notice required pursuant to [Real Property Law § 226-c (1) (a)], notice required pursuant to [RPAPL 711 (2)], or petition pursuant to [RPAPL 741]." (Real Property Law § 231-c [1]; see also RPAPL 741 [5-a], [5-b].) The Real Property Law § 231-c notice must state whether the premises are subject to or exempt from the GCEL; if the premises are exempt, why they are exempt; and if the premises are subject to the GCEL, the statutory good cause ground for eviction.

Petitioner's Motion to Amend Petition

To the extent petitioner's motion seeks to amend the petition itself, the motion is granted. Under CPLR 3025 (b), leave to amend a pleading "shall be freely given" absent prejudice. Paragraph 10 of the petition states:

"The subject premises may be subject to the Good Cause Eviction (GCE) requirements under article 6A of the New York State Real Property Law and to Real Property Law § 231-c, unless an exemption applies. An exemption exists because Respondents have an outstanding balance of unpaid rent/use and occupancy as of the date of this petition."

The court will permit petitioner to substitute its proposed new second sentence of paragraph 10 of the petition: "An exemption exists because Respondents have engaged in a nuisance and have refused the owner access to make repairs."

However, to the extent petitioner seeks to amend not just its petition but also its Real Property Law § 231-c notice, which {**88 Misc 3d at 727}landlords are required to append to both their termination notices and their petitions^FN1—CPLR 3025 (b) does not apply; as discussed below, such amendment is not permitted. To begin with, this is a holdover proceeding based on a 90-day notice of termination stating simply that "no current lease is in effect." While petitioner's termination notice does not cite to any provisions of the Real Property Law, it is evident that it was issued and served on respondent pursuant to Real Property Law § 232-a, entitled "Notice to terminate monthly tenancy or tenancy from month to month in the city of New York." The three possible time frames for notice under Real Property Law § 232-a (30, 60 and 90 days) are found in Real Property Law § 226-c (2), entitled "Notice of rent increase or non-renewal of residential tenancy." Real Property Law § 226-c, in turn, was amended by the GCEL to mandate the additional notice required by Real Property Law § 231-c.

Petitioner in its moving papers conflates the proposed amendment to the petition at paragraph 10 with its additional proposed amendment to the Real Property Law § 231-c notice. Petitioner's attorney asserts that the proposed amendment "merely goes to correct the inadvertent checkmark mistakenly [*5]reflecting Petitioner as exempt" from the GCEL (affirmation of petitioner's atty ¶ 15; see also affirmation of petitioner's agent ¶¶ 4, 5 ["this was a mere typographical error"]).

However, in these statements petitioner minimizes what it is asking the court to permit, and fails to highlight all the ways in which its proposed revised Real Property Law § 231-c notice differs from the original, as follows:

1. the apartment is subject to the GCEL (with a check mark after the word "YES" under item #1 of the notice, instead of after the word "NO"); and

2. the apartment is not exempt from the GCEL because it is owned by a "small landlord" as defined in Real Property Law § 211 (3) (check mark removed from in front of item #2B of the notice); and

3. while the apartment is subject to the GCEL, there is good cause for nonrenewal of the lease not because of a violation of a substantial obligation of the tenancy after providing a 10-day notice to cure but because the tenant is (a) causing a nuisance, constituting good cause for eviction under Real Property Law {**88 Misc 3d at 728} § 216 (1) (c); AND (b) refusing the landlord access to the unit, constituting good cause for eviction under Real Property Law § 216 (1) (f) (with added check marks in front of items #3G and #3J of the notice and check mark removed from in front of item #3F).

In other words, petitioner seeks not simply to remove the check mark from item #2B on the Real Property Law § 231-c notice indicating that petitioner had a GCEL exemption as a "small landlord," but also to amend that notice to reflect that (1) the apartment is not exempt from the GCEL and (2) petitioner is not renewing respondent's lease and has good cause to evict not because of the originally stated good cause grounds (substantial violation of the tenancy after providing a 10-day notice to cure) but because of respondent's impermissible nuisance behavior and unreasonable refusal to permit petitioner to have access to the apartment.

The issue presented by this case is whether petitioner should be permitted now to amend its Real Property Law § 231-c notice, which the GCEL requires a landlord to attach to a 90-day termination notice under Real Property Law §§ 226-c and 232-a. The cases cited by petitioner are inapposite, as none of them address this issue:

• In Doc Realty Mgt. Inc. v Morales (85 Misc 3d 389 [Civ Ct, Queens County 2024]), a holdover proceeding commenced after the effective date of the GCEL based on a 90-day termination notice served before the effective date of the Real Property Law § 231-c notice provisions, the court granted the tenant's motion to dismiss, noting that while the Real Property Law § 231-c notice provisions were not in effect when the predicate notice was issued, the petition itself failed to comply with the GCEL's notice requirements under RPAPL 741 (5-a) and (5-b), which did apply.

• In Emerald Green Phase II L.P. v Rivera (86 Misc 3d 1211[A], 2025 NY Slip Op 50916[U] [Civ Ct, Kings County 2025]), a licensee holdover proceeding commenced after the effective date of the GCEL based on a 10-day notice to vacate served before the effective date of the Real Property Law § 231-c notice provisions, the court granted the landlord's cross-motion to amend the petition to add that the premises were exempt from the{**88 Misc 3d at 729} GCEL and denied the tenant's motion to dismiss for failure to comply with RPAPL 741 (5-a) and (5-b).

• In 1372 Shakespeare Ave HDFC v Perez (2025 NY Slip Op 35257[U] [Civ Ct, Bronx County 2025]), a nonpayment proceeding commenced after the [*6]effective date of the GCEL based on a 14-day rent demand served before the effective date of the Real Property Law § 231-c notice provisions, the court granted the landlord's cross-motion to amend the petition to conform with GCEL pleading requirements and denied the tenant's motion to dismiss for failure to comply with RPAPL 741 (5-a) and (5-b).

Unlike those cases, here, the GCEL notice provisions of Real Property Law § 231-c were in effect at the time petitioner's termination notice was prepared (Aug. 26, 2024) and served (Aug. 29, 2024) and required the Real Property Law § 231-c notice to be appended to the termination notice. It is not necessary for this court to resolve the parties' disputes over whether the original Real Property Law § 231-c notice was or was not attached to petitioner's termination notice^FN2 or whether petitioner was required but failed to serve a 10-day notice to cure in connection with its originally alleged good cause ground of violation of a substantial obligation of the tenancy. Assuming but not deciding that the Real Property Law § 231-c notice was attached, it is black-letter law that predicate termination notices are non-amendable. (Chinatown Apts. v Chu Cho Lam, 51 NY2d 786, 787 [1980].) Just as the termination notice under Real Property Law §§ 226-c and 232-a is non-amendable, it follows that also non-amendable is the new Real Property Law § 231-c notice, which must be appended to the termination notice to advise the tenant of the applicability or inapplicability of the Good Cause Eviction Law, and, where applicable, the reason permitted under that law for the landlord's nonrenewal of the lease.

Compliance with the statutory prerequisites to a summary eviction proceeding, including service of an adequate predicate {**88 Misc 3d at 730}notice, constitutes facts on which the proceeding is based and which a petitioner must plead and prove as part of its prima facie case. (Second & E. 82 Realty v 82nd St. Gily Corp., 192 Misc 2d 55, 57 [Civ Ct, NY County 2002], citing Real Property Law § 232-a, RPAPL 741 [4], and City of New York v Valera, 216 AD2d 237, 238 [1st Dept 1995].) New York State courts evaluate the sufficiency of predicate notices based on a standard of reasonableness "in view of the attendant circumstances." (Oxford Towers Co., LLC v Leites, 41 AD3d 144, 144 [1st Dept 2007]; Avon Bard Co. v Aquarian Found., 260 AD2d 207, 210 [1st Dept 1999], appeal dismissed 93 NY2d 998 [1999]; Hughes v Lenox Hill Hosp., 226 AD2d 4, 17 [1st Dept 1996], lv dismissed & denied 90 NY2d 829 [1997].) The notice must provide sufficient information to meet the tests of reasonableness and due process. (Jewish Theol. Seminary of Am. v Fitzer, 258 AD2d 337, 338 [1st Dept 1999].)

Measured against this test, for example, a predicate notice in a holdover proceeding based on breach of lease will be found insufficient where "it failed to set forth case-specific allegations tending to support landlord's breach of lease claim with sufficient detail to have allowed tenant to prepare a defense." (Prospero Hall LP v Paulino, 85 Misc 3d 126[A], 2025 NY Slip Op 50082[U], *1 [App Term, 1st Dept 2025], citing City of New York v Valera; see also e.g. 49 W. 12 Tenants Corp. v Seidenberg, 6 AD3d 243, 244 [1st Dept [*7]2004] [affirming lower court's dismissal of action to evict tenant shareholder in a residential cooperative building where letter notification of intention to terminate proprietary lease found to be defective]; 50 W. 112th St. HDFC v Ali, 13 Misc 3d 1237[A], 2006 NY Slip Op 52150[U], *4 [Civ Ct, NY County 2006] [dismissing holdover proceeding "without prejudice to a new proceeding based on a notice of termination stating a good cause for respondent's eviction that satisfies the due process protection of the Fourteenth Amendment"].)

Petitioner now acknowledges that the GCEL applies to this tenancy, and that, under the GCEL, "[n]o landlord shall, by action to evict or to recover possession, . . . remove any tenant from housing accommodations covered by [section 214] of this article except for good cause as defined in [section 216] of this article." (Real Property Law § 215.) As noted recently by Housing Court Judge Meyers, "[b]ecause this statutory provision{**88 Misc 3d at 731} requires good cause for the act of nonrenewal itself, section 226-c notices for units covered under GCEL must include factual allegations sufficient to satisfy the Hughes reasonableness standard." (RP Wimbledon Owner, LLC v Chisholm, 86 Misc 3d 1075, 1078 [Civ Ct, NY County 2025].) Here, neither the Real Property Law §§ 226-c and 232-a termination notice nor the original Real Property Law § 231-c notice identify what petitioner now asserts to be the reason for its nonrenewal of respondent's lease and the basis of this proceeding: alleged nuisance behavior and failure to provide the landlord reasonable access to the apartment. It is only the proposed amended Real Property Law § 231-c notice that raises these claims. However, the Real Property Law § 231-c notice is non-amendable and fails to meet "the appropriate standard for assessment of the adequacy of notice [which] is one of reasonableness in view of all attendant circumstances." (Hughes v Lenox Hill Hosp., 226 AD2d 4, 17 [1st Dept 1996].)

The proponent of a summary judgment motion under CPLR 3212 must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980].) Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient. (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d at 562.)

While there may be disputes between the parties as to whether respondent committed a nuisance or failed to provide reasonable access to petitioner, it is not necessary to address those concerns at this juncture. Petitioner failed to serve a proper predicate termination notice that conforms to the requirements of Real Property Law §§ 232-a, 226-c and 231-c, a condition precedent to maintaining this holdover eviction proceeding under RPAPL 711 (1), and is not permitted to amend that notice. Accordingly, the proceeding must be dismissed, without prejudice.{**88 Misc 3d at 732}

Conclusion

For the reasons stated above, it is hereby ordered that (1) petitioner's motion is granted to the extent of permitting amendment of paragraph 10 of the petition; and (2) respondent's cross-motion is granted, and this proceeding is dismissed, without [*8]prejudice.