Recitation, as required by C.P.L.R. § 2219(a), of the papers considered in review of these motions:

After argument heard on July 14, 2025, the court finds as follows:

The seven-day termination notice in this matter alleges the respondent has "violated and continue to violate substantial obligations of your tenancy," and references paragraphs 11, 12, 37, and 78 of the lease and a "non-smoking addendum" attached to said lease. The notice alleges violations of these paragraphs due to the tenant smoking in the apartment, causing odors to emanate into other areas and disturbing other residents; excessive music which disturbs other tenants; threats and verbal abuse when the tenant is asked to stop smoking or turn down the music. (see NYSCEF Doc. No. 1, p. 3-6). The termination notice goes on to state that the lease explicitly does not require "a notice of default in the event of objectionable conduct." (id at p. 5). [*2]It further states that the notice is served pursuant Section 2524.3(a) of the Rent Stabilization Code (RSC). (id).

Respondent moves for dismissal on a simple ground: that when claiming a tenant has violated a substantial obligation of the tenancy under RSC § 2524.3(a), a notice to cure must be served. Petitioner concededly did not serve a notice to cure. As to the purported lease provision stating that a notice of default is not required, respondent argues that, to the extent it may be read as waiving the right to a notice to cure, such a provision is void against public policy as it would waive or contract around a protection of the RSC.

In opposition, petitioner argues that neither the lease nor applicable law require a notice to cure. The lease argument is self-evident. As to the law argument, petitioner concludes that a notice to cure is not required where the landlord elects to treat the conduct as non-curable. (see Doc. No. 9, par. 15). Petitioner then concludes that under § 2524.3(b), no notice to cure is required and argues that the notice is clearly alleging objectionable conduct.

In reply, respondent points out that petitioner's reference to § 2524.3(b) is surprising. After all, the termination notice references § 2524.3(a), not § 2524.3(b).

When considering a motion under CPLR § 3211, the court must afford the pleadings a liberal construction. The court must deem the facts alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). In assessing a motion under CPLR § 3211(a)(7), "the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one." (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; see also Rovello v Orofino Realty Co., 40 NY2d 633, 636 [1976]).

Thus, "a motion to dismiss made pursuant to CPLR § 3211(a)(7) will fail if," after giving petitioner every favorable inference, "the complaint states in some recognizable form any cause of action known to our law." (Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38, [2nd Dept. 2006]; see also Leon v Martinez, 84 NY2d at 87-88; 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002]). Critically, "[o]n a motion made pursuant to CPLR 3211(a)(7) the burden never shifts to the nonmoving party to rebut a defense asserted by the moving party." (Sokol v Leader, 74 AD3d 1180, 1181 [2nd Dept. 2010]).

The case is dismissed.

The notice of termination clearly and unequivocally alleges the tenant has violated multiple lease terms. It references RSC § 2524.3(a).

§ 2524.3(a) states, in relevant part: "The tenant is violating a substantial obligation of his or her tenancy other than the obligation to surrender possession of such housing accommodation, and has failed to cure such violation after written notice by the owner that the violations cease within 10 days." (emphasis added).

Consequently, a notice to cure is required when the case is brought under this provision. (see Lexington Ave. LP v. Clement, 83 Misc 3d 1257(A), 2 [Civ Ct, Kings County 2024]; Graham Ct. Owners Corp. v. Taylor, 49 Misc 3d 7, 8 [App Term, 1st Dept 2015]; WAM Equity Partners L.P. v. Lyon, 11 Misc 3d 134(A), 1 [App Term, 1st Dept 2006])

Petitioner's opposition, (see Doc. No. 9), is strewn with references to § 2524.3(b) and argues that the respondent is engaging in objectionable "nuisance" conduct.

In fact, the termination notice could not be clearer: it states violation of a substantial obligation of the tenancy, references specific lease terms allegedly violated, references the RSC provision upon which it relies (§ 2524.3(a)), does not use the word "nuisance" anywhere, and does not reference the nuisance provision of the RSC.

RSC § 2524.2(b) requires that "[e]very notice to a tenant to vacate or surrender possession of a housing accommodation shall state the ground under section 2524.3 or 2524.4 of this Part, upon which the owner relies for removal or eviction of the tenant, the facts necessary to [*3]establish the existence of such ground, and the date when the tenant is required to surrender possession." (emphasis added). Petitioner chose its "ground," and it is not nuisance under § 2524.3(b). (see e.g. M. 1695 G.C. LLC v Perez, 66 Misc 3d 320, 325 [Civ Ct, Bronx County 2019] ("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' is also without merit, where, as here, the notice of termination on its face specifically" refers to a lease provision.)).

It is not unheard of to serve a combined notice alleging nuisance and violation of and substantial obligation of the tenancy. (see e.g. Rockaway One Co., LLC v Califf, 194 Misc 2d 191, 194 [App Term, 2d Dept 2002]). However, petitioner did not do so.

Petitioner argues that the lease between these parties does not require a notice to cure. (see Doc. No. 9, par. 21, referencing lease par. 73 [Doc. No. 11]). This argument must fail because a lease provision that purports to waive a benefit of the RSC is unenforceable. (see Liggett v Lew Realty LLC, 42 NY3d 415, 417 [2024]).

As to the argument that the complained of conduct is incapable of cure, the court is unconvinced. While any respondent may ultimately not cure, smoking inside the building and playing loud music are acts respondent could stop.^[FN1] The allegations in the instant case are not obviously uncurable, thereby relieving petitioner of the notice to cure requirement. (see e.g. Aurora Associates LLC v Hennen, 157 AD3d 608, 608 [1st Dept 2018] (Airbnb profiteering uncurable); Karagiannis v Nasr, 17 Misc 3d 133(A), 1 [App Term, 2d Dept 2007] (unless required by lease, notice to cure not required before termination based on denial of access to make necessary repairs); see also M. 1695 G.C. LLC v Perez, 66 Misc 3d at 326 [Civ Ct, Bronx County 2019] ("Violent, dangerous, and even illegal behavior is not per se non-curable.")).

Consequently, dismissal is required because petitioner failed to serve a required notice to cure. "Proof of compliance with such a statutory notice requirement is a necessary element of a holdover proceeding against a rent-stabilized tenant." (1646 Union, LLC v Simpson, 62 Misc 3d 142(A), 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; see also Graham Court Owners Corp. v Taylor, 49 Misc 3d at 8 (Failure to serve notice to cure "fatal."); 2215-75 Cruger Apartments, Inc. v Stovel, 196 Misc 2d 346, 347 [App Term, 1st Dept 2003]).

The court notes it has not considered respondent's arguments regarding the sufficiency of the termination notice, which are made for the first time in reply.

Reply papers should not be used to introduce new arguments or provide proof that a movant fails to provide when initially moving for relief. (see Gelaj v Gelaj, 164 AD3d 878, 879 [2d Dept 2018] ("The purpose of a reply affidavit or affirmation is to respond to arguments made in opposition to the movant's motion and not to introduce new arguments or grounds in support of the relief sought."); Citibank, N.A. v Brooks, 180 AD3d 865, 866 [2d Dept 2020]; see also Alvarellos v Tassinari, 222 AD3d 815, 820 [2d Dept 2023] (the court should not have considered the new argument and evidence submitted for the first time in reply)).

Based on the foregoing, respondent's motion is granted, and judgment shall enter dismissing the case.

This constitutes the decision and order of the court. It will be posted on NYSCEF.