Civil Court of the City of New York, Kings County

Decided on March 30, 2026

LT-326656-25/KI

Karen May Bacdayan, J.

[*1]

Recitation, as required by CPLR 2219 (a) of the papers considered in review of this motion by NYSCEF Doc Nos: 10-13.

PROCEDURAL POSTURE AND BACKGROUND

This is a holdover proceeding commenced against respondent Shaista Husain, an unregulated month-to month tenant. Petitioner seeks possession of the unit and "the fair value of use and occupancy at $5,846.15 per month from 4/1/2018 to 10/31/2025 totaling $317,480.02 with interest from 4/1/2018[.]" (NYSCEF Doc No. 1, petition ¶ 9.) Petitioner served respondent with a 90-day notice of termination as required by Real Property Law ("RPL") § 232-a and appended the required Good Cause Eviction Law ("GCEL") notice to both the notice of termination and the petition stating that the unit is subject to GCEL. (Id. at 3-11; RPL 231-c.) Petitioner pleads in the notice of termination, "Landlord has good cause to terminate your tenancy as you are behind on your rental obligation[,]" (Id. at 6.) The annexed GCEL notice marks the applicable basis for good cause as, to wit, "The landlord is not renewing the lease because the tenant has failed to pay rent due and owing, and the rent due or owing, or any part thereof, did not result from a rent increase which is unreasonable." (Id. at 9.) The GCEL notice further explains what is considered to be a presumptively unreasonable rent increase.

Respondent retained counsel through the Universal Access to Counsel initiative, and respondent's attorney filed a notice of appearance on the date the petition was noticed to be heard, February 6, 2026. The proceeding was adjourned for all purposes to March 19, 2026. Respondent filed a motion to dismiss the proceeding at 4:24 p.m. on March 18, 2026, returnable at 9:30 a.m. on March 19, 2026. (NYSCEF Doc No. 10, notice of motion [sequence 1].) CPLR 406 provides that "[m]otions in a special proceeding, made before the time at which the petition [*2]is noticed to be heard, shall be noticed to be heard at that time." Respondent requested that if petitioner sought time to oppose the motion, respondent must be afforded a reply. However, petitioner's attorney chose to oppose the motion orally, rather than further delay the resolution of this summary proceeding. The court accepted petitioner's attorney's oral opposition on the record, to which respondent was afforded an opportunity to reply orally, also on the record.

ARGUMENTS

Respondent argues that "[p]etitioner's failure to inform [r]espondent in the predicate [n]otice of [t]ermination of the amount of rent allegedly owed or the period for which rent was allegedly owed rendered the Notice of Termination fatally defective." (NYSCEF Doc No. 12 at 3, respondent's mem of law.) Respondent advances that because it is "black letter law" that a predicate notice cannot be amended, this proceeding must be dismissed. (Id.) Citing to RP Wimbledon Owner, LLC v Chisholm, 86 Misc 3d 1075, 1077 (Civ Ct, NY County 2025),FN1 upon which respondent heavily relies, and Hughes v Lenox Hill Hosp., 226 AD2d 4, 17 (1st Dept 1996), lv dismissed & denied, 90 NY2d 829 (1997), upon which Chisholm relies heavily, respondent contends that it is reasonable in view of all the attendant circumstances that the notice of termination comprise specific factual allegations regarding the period for which rent is allegedly due, and a good faith estimate of said arrears. Respondent proposes that public policy requires that a residential tenant must be given an opportunity to cure their default in rent payments. Respondent further argues that the inconsistencies between the predicate notice and the petition which conflate the terms "rent" and "use and occupancy" requires dismissal of the proceeding.

Petitioner denies that their pleadings are defective. Petitioner argues that this is a termination of a month-to-month tenancy holdover pursuant to RPL § 232-a ("Notice to terminate monthly tenancy or tenancy from month to month in the city of New York"), and RPL § 226-c ("Notice of rent increase or non-renewal of residential tenancy"), for which no cause would ordinarily be required but for the fact that respondent's tenancy is subject to GCEL. Petitioner contends that it has pleaded a permissible cause under GCEL, and that the GCEL notice requirements do not comprise a necessity to plead how much rent is owed or for what period of time, i.e. the plain language of the relevant statutes and the GCEL notice requires nothing more than this particular exception be "marked" in the GCEL notice. Petitioner advances that this is a question of what level of detail must be given in the predicate notice. Petitioner rejects respondent's argument that commercial nonpayment holdover decisions are applicable here. In those commercial cases, courts have routinely required a statutory rent demand pursuant to Real Property Actions and Proceedings Law ("RPAPL") 711 (2), which provides for a pre-litigation cure. Petitioner notes that the State of New York did not legislate [*3]that further explication of the details of a rent default be pleaded, or that a tenant be offered a pre-litigation cure, in the context of terminating residential tenancies that are subject to GCEL. The court, petitioner argues, "cannot turn a holdover case into a nonpayment case." Petitioner further argues that the attached RPL 231-c notice is sufficient to put respondent on notice that the premises is subject to GCEL and of the exemption from GCEL that petitioner has invoked. Petitioner contends that respondent is well aware that she owes almost $400,000 in either rent or use and occupancy, and that she will have an opportunity to defend against the allegations in the petition at trial; i.e. whether the parties can prove their claims and defenses, and/or whether there is actually good cause to seek respondent's eviction under the law, is a factual issue for trial.

In reply, respondent reiterated her arguments.

DISCUSSION

When considering a motion under CPLR 3211 (a) (7), the court must afford the pleadings a liberal construction, 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 petitioner has stated a cause of action, not whether petitioner actually has one. (See Romanello v Intesa Sanpaolo, S.p.A., 22 NY3d 881, 887 [2013, Abdus-Salaam, J., dissenting in part]; Rovello v Orofino Realty Co., 40 NY2d 633, 635-636 [1976]). The court must not consider whether the petitioner will be able to ultimately prove the allegations made in the pleadings. (see Howard Stores Corp. v Pope, 1 NY2d 110, 114 [1956]; Victory State Bank v EMBA Hylan, LLC, 169 AD3d 963, 964-965 [2nd Dept 2019].) "[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 (emphasis added)." (Sokol v Leader, 74 AD3d 1180, 1181 [2nd Dept 2010].)

On April 20, 2024, GCEL was enacted and is codified in Article 6-A of the RPL. As of August 18, 2024, all landlords are required to, as relevant here, "append to or incorporate into any . . . notice required pursuant to [RPL § 226-c (1) (a)],FN2 notice required pursuant to [RPAPL [*4]711 (2)],FN3 or petition pursuant to [RPAPL 741 (5-a)],"FN4 a specific notice embedded in the statute notifying tenants whether the premises are subject to or exempt from the GCEL. (RPL § 231-c.) A landlord is required to indicate whether the premises is subject to GCEL or not marking a box, "yes" or "no." If the premises are not subject to GCEL, the landlord must check off the reason stating stating why this is true. If the premises are subject to GCEL, a landlord is required to mark one of the provided good cause reasons for the proceeding.

As stated by the court in 1719 Gates LLC v Torres, 85 Misc 3d 906, 907—908 (Civ Ct, Queens County 2024):

"GCEL offers 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 ten units of housing within New York State (see RPL 211[3][a]; RPL 214[1]-[2]). 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 RPL 216(1)(a) - (j) 'upon order of a court of competent jurisdiction entered in an appropriate judicial action or proceeding' (RPL 216 [1]). One of the Good Cause grounds is that '[t]he tenant has failed to pay rent due and owing, provided however that the rent due and owing, or any part thereof, did not result from a rent increase which is unreasonable' (RPL 216 [1] [a] [i].)"

Distinguishing traditional nonpayment proceedings commenced pursuant to RPAPL 711 (2), the Torres court opined that "the legislature has effectively created a new cause of action in [*5]the form of a nonpayment styled as a nonrenewal holdover for good cause," and GCEL "unambiguously authorizes a nonrenewal holdover premised on a tenant's failure to pay rent . . . ." (Id. at 909, 913.) The Torres court suggests that although it may be more "economical" for a landlord to commence a nonpayment proceeding -- because a statutorily mandated pre-litigation cure is available, and litigation could be avoided by payment of rent due prior to the commencement of the proceeding -- "it is not the role of the courts to override clear legislative enactments (see Ben Ami v Ronen, 79 Misc 3d 14 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023], citing Chazon, LLC v Maugenest, 19 NY3d 410, 416 [2012])." (Id. at 914 [foonote omitted].) Here, a cure, albeit a post-judgment cure, is provided by RPAPL 751 (1).FN5

While RPAPL 711 (2) addresses public policy concerns for tenants facing eviction in a summary nonpayment proceeding by requiring a specific and unamendable rent demand notice pursuant to which a tenant may avoid the risk of eviction by paying the demanded rent due within 14 days,FN6 the legislature has not imposed this requirement in the case of GCEL holdovers against unregulated tenants where the good cause for eviction is nonpayment of rent. While the legislature has addressed numerous public policy concerns through the passage of GCEL, the legislature did not see fit to require a pre-litigation cure period, or anything but the mandatory good cause language provided in RPL § 231-c.FN7 Here, the cure is provided post-litigation by RPAPL 751 (1).FN8

The Court of Appeals has observed that "[a] statute must be read and given effect as it is written by the Legislature, not as the court may think it should or would have been written if the Legislature had envisaged all the problems and complications, which might arise in the course of its administration." (Allen v Minskoff, 38 NY2d 506, 511 [1976] [internal quotation marks omitted].)

In the Second Department in which this court sits, a landlord may to commence a nonpayment proceeding against a month-to-month tenant pursuant to RPAPL 711 (2). (See Priegue v Paulus, 43 Misc 3d 135[A], 2014 NY Slip Op 50662[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]; Tricarichi v Moran, 38 Misc 3d 31 [App Term, 2d Dept, 9th & 10th Jud Dists 2012].) Now, a landlord whose tenant is protected by GCEL may also choose to commence a holdover proceeding if the tenant is behind on their rental obligations for reasons other than an unlawful increase in rent. The prerequisites to commencement of a holdover proceeding against a month-to-month tenant are set forth in RPL § 232-a and RPL § 226-c. No cause is required to proceed against a tenant who is not protected by GCEL, e.g. where the landlord does not own, either directly or indirectly, more than ten units of housing within New York State. (RPL §§ 214 [1], 211 [2].) However, if a tenant is protected by GCEL, a landlord must mark on the required RPL § 231-c notice an applicable good cause reason for termination of the tenancy.FN9

Based on the plain language of the statute, a holdover proceeding against a GCEL-protected, unregulated tenant for "failure to pay rent due and owing" provides the necessary good cause. Nothing more is required pre-commencement of the holdover proceeding than informing the tenant -- by appendage or incorporation of the RPL § 231-c notice to the notice of termination -- that the cause for the holdover proceeding is the "failure to pay rent due and owing" which "did not result from a rent increase which is unreasonable." (RPL § 216 (1) (a) (i); GCEL notice embedded in RPL § 231-c at [4] [E].)

Other sections of the RPL § 231-c notice require either more specificity or additional explication than the section of the notice at issue here does not. For example, a holdover based upon a substantial breach of a tenancy obligation requires a notice to cure. (RPL 231-c notice at [4] [F].) As another example, if a unit is subject to GCEL and the landlord seeks to raise the rent more than 10 percent, the landlord must provide a detailed reason in the space clearly allotted on the notice for said detail. Specifically, the RPL § 231-c notice states, "If the rent is being increased above the threshold for presumptively unreasonable rent increases described above, [*6]what is the justification for the increase[?]. Ample space for addition detail is provided. (RPL 231-c notice at [3] [B-1].) This is the only provision in the GCEL notice which requests and provides a specific area for more detail. (See Commonwealth of N. Mariana Islands, cited supra, 21 NY3d at 62.

Some courts have imported the rent demand provisions of RPAPL 711 (2) applicable to summary nonpayment proceedings into holdover proceedings against commercial tenants based upon rent defaults. (542 Holding Corp. v Prince Fashions, Inc., 46 AD3d 309 [1st Dept 2007]; Westhampton Cabins & Cabanas Owners Corp. v Westhampton Bath & Tennis Club Owners Corp., 62 AD3d 987 [2d Dept 2009].). And at least one published opinion has followed this lead. (Wimbledon Owner, LLC v Chisholm, 86 Misc 3d 1075, 1077 [Civ Ct, NY County 2025].) But this is neither a commercial holdover proceeding nor a residential nonpayment proceeding. This is a residential holdover proceeding pursuant to a newly enacted statute which provides that, where a dwelling is subject to GCEL, a landlord may only proceed against a tenant in a holdover proceeding for certain enumerated reasons constituting good cause. In this way, GCEL is akin to the rent stabilization laws. However, the rent stabilization laws provide the specific and exclusive reasons for which a rent stabilized tenant's lease may be terminated. (Rent Stabilization Code [9 NYCRR] 2524.3 ["Proceedings for eviction — wrongful acts of tenant".) Unlike GCEL, the Rent Stabilization Code does not provide a cause of action for nonpayment of rent; rather, the cause of action is found in RPAPL 711 (2).

Under GCEL, a holdover tenant must receive the specific, statutorily prescribed notice embedded in RPL § 231-c which is distinct from the RPAPL statutory "rent demand" with its more liberal cure provisions. While respondent herein argues that petitioner must be required to state in the RPL § 231-c predicate notice the specific amount due, and the period for which it is due to enable a cure, such language, while certainly preferable, is optional. (See e.g. Bank of Am., N.A. v Kessler, 39 NY3d 317, 324 [2023] [where a notice "shall include" specific language, "[t]he word 'include' suggests that more can be added to the notice" as long as it is accurate]; see also e.g. 22 NYCRR § 208.42 [b] [providing for a "form notice of petition for mandatory use in eviction proceedings"]; M&S Queens Realty LLC v London, 79 Misc 3d 788, 791 [Civ Ct, NY County 2023] ["petitioner's failure to utilize the court-mandated notice of petition form over three years after its implementation by the Chief Administrative Judge is a fatal defect[.]"].) As here, requiring a landlord to plead more -- where the statute does not -- will inevitably put landlords in the cross-hairs of a motion to dismiss for failure to comply with a prerequisite that is decidedly absent in the statute under which the landlord is proceeding. Certainly, the legislature was aware of RPAPL Article 7 when creating RPAPL Article 6-A. (See e.g. Fitzgerald v Washington, 80 Misc 2d 861, 870 [Civ Ct, NY County 1975] [noting the rules of statutory construction militate that when amending the statute to include attorneys as individuals who could verify a petition "the legislature is presumed to have been aware of the interaction of RPAPL § 721 with the various provisions of the CPLR[.]"], citing Erikson v Helfand, 1 AD2d 59 [3d Dept 1955], affd, 1 NY2d 775 [1956]. As well, "[a] court cannot by implication supply in a statute a provision which it is reasonable to suppose the Legislature intended intentionally to omit[,]" because "the failure of the Legislature to include a matter within the scope of an act" may be construed as a beacon of the legislature's intent to exclude the matter. (See Commonwealth of N. Mariana Islands 21 NY3d at 62.)

At least one court, Shared Cooper LLC v Callejas, 88 Misc 3d 1208(A), 2026 NY Slip Op 50054(U) (Civ Ct, NY County 2026), has analogized the good cause required by GCEL to [*7]cases involving tenancies that are significantly "entwined" with government involvement such as Housing Fund Development Corporations organized under Private Housing Finance Law § 576 (1). In such cases, constitutional due process protections are triggered, and a landlord must therefore establish prima facie sufficient good cause to terminate the unregulated tenancy. (See 512 E. 11th St. HDFC v Grimmet, 181 AD2d 488 [1st Dept 1992]; see also 157 W. 123rd St. Tenants Assoc. v Hickson, 142 Misc 2d 984, 985 [App Term, 1st Dept 1989] ["Eviction . . . requires a cause other than mere expiration of the lease[.]"], quoting Hudsonview Terrace, Inc. v Maury, 100 Misc 2d 331, 332 [App Term, 1st Dept 1979].) However, these cases are distinguishable in that, unlike here, there is no legislated definition of "good cause" pursuant to a statute which supports termination of an unregulated tenancy in a governmentally-entwined cooperative building. In contrast, GCEL specifically prescribes that "failure to pay rent due and owing" that is not due to an unlawful increase in rent shall constitute "good cause" to initiate a holdover proceeding against a tenant. (RPL § 216 [1] [a] [i]; RPL § 231 notice.) Whether or not good cause based on nonpayment of rent actually exists is a matter for trial.

Notwithstanding the foregoing, tenants are not left without any tools at their disposal when defending a holdover based upon a failure to pay rent. While the RPL § 231-c notice is simple, litigation of these cases will not be straightforward. Apropos petitioner's argument that whether there is good cause due to respondent's nonpayment of rent is a factual issue for trial, in cases where the expiration of a lease alone is not cause for termination of a tenancy, supra, courts have determined what constitutes good cause -- and whether it exists -- through a fact-specific inquiry dependent on the unique circumstances of each proceeding. (See e.g. Callejas, 2026 NY Slip Op 50054[U], *3 [finding after trial that "'[s]ome evidence' of a tenant's 'problems' paying rent, by contrast, does not show that a tenant's nonpayment reached the level of good cause to terminate the tenancy, particularly in the absence of documentation of hardship incurred by a landlord by such 'problems' paying rent."]; 207-213 W. 144th St. HDFC v Jenkins, 44 Misc 3d 1224[A], 2014 NY Slip Op 51300[U] [Civ Ct, NY County 2014] [finding after trial that good cause existed where "for most of [r]espondent's short term tenancy she was in arrears" and offer of a lease was contingent on timely payment of rent]; see also 601 W. 136 St. HDFC v Olivares, 2014 NY Slip Op 31474[U] [Civ Ct, NY County 2014] [finding after trial that failure to sign a good faith renewal offer constitutes good cause].) As well, both the nature and duration of a respondent's tenancy are considerations. (92 St. Nicholas Ave. HDFC v Rasheed, 46 Misc 3d 1211[A], 2015 NY Slip Op 50039[U] [Civ Ct, NY County 2015] [considering "the long term nature of [the] tenancy" in declining to find good cause for an eviction after trial].)

Even if it is determined that rent is due, and good cause exists, landlords will still have to prove their cause of action for the underlying holdover. For example, if a tenant never paid rent after expiration of their lease, a month-to-month tenancy has not been created. A tenant also has many defenses, including but not limited to partial payment, laches, breach of the warranty of habitability, retaliatory eviction, and unlawful rent increases. Moreover, unless the petition is so egregiously and inartfully pleaded,FN10 a tenant may obtain more specific information, for example [*8]a rent ledger through a bill of particulars.FN11 (CPLR 3126; CPLR 408.)

CONCLUSION

Here, petitioner has served the required predicate notices. Petitioner has appended the RPL § 231-c notice to the predicate notice and to the pleadings and utilized the very language required by the legislature to provide an applicable good cause exception to GCEL. (RPL § 216 [1] [a] [i]; RPL § 231-c [4] [E].) The petition alleges the total amount that respondent has allegedly failed to pay, the period for which it is sought, and the amount due for each month allegedly unpaid. (NYSCEF Doc No. 1, petition ¶ 9 ["The Petitioner is entitled to the fair value of use and occupancy at $5,846.15 per month from 4/1/2018 to 10/31/2025 totaling $317,480.02 with interest from 4/1/2018 for an amount to be set by the Court as well as future use and occupancy."]) Respondent may still defend against the amount of rent or use and occupancy claimed. (Yorkville Plaza Assocs., 2025 NY Slip Op. 25282; Callejas, 2026 NY Slip Op 50054[U].) And the legislature has provided respondent with the cure it deemed reasonable. (RPAPL 751 [1].)

Accordingly, it is

ORDERED that respondent's motion to dismiss is DENIED.

The parties shall appear in part T, Room 503 of the Kings County Housing court on April 6, 2026 at 9:30 a.m. for transfer to the trial part. There shall be no further motion practice in the resolution part.

This constitutes the decision and order of the court.

Dated: March 30, 2026

Brooklyn, NY

HON. KAREN MAY BACDAYAN

Judge, Housing Part