Koti v. Vasquez

Koti v Vasquez 2024 NY Slip Op 31603(U) May 8, 2024 Civil Court of the City of New York, Kings County Docket Number: Index No. L&T 316254-23 Judge: Julie Poley Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

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CIVIL COURT OF THE CITY OF NEW YORK COUNTY OF KINGS: HO USI G PART C - - -- ------------------------------------------------------x PARASHQEVI KOT! L&T 316254-23

Petitioner, Decision and Order against

MA YR.A VASQUEZ. ENTERED- Kings Civil Court ·'JOH 1 DOE & "JA E DOE'. ENTERED- Kings Civil Court Respondents. ------------------------------------------------------------x Recitation, as required by CPLR 2219(a)

Notice of Motion and Affidavits Annexed ...... ..... .......... ....... ............... I Order to Show Cause and Affidavits Annexed ..... ..... ..... ...... .. ........... .. 0 Answering Affidavits ... ........ .... ......... ... ......... ...... ............ ..................... 2 Replying Affidavits .... ..... ............... ... ....... ........ .... ... .. .... .. ............... .. .... 1 Exhibits ...... .......... ...... ..... .. ... ......... .... .. ... .. .. ... ....... .... .. .......... .... ... ... .. .. ..8 Stipulations ... ... .. .. ..... ..... .... ......... ... .... ............ ... ... ...... .. .. .. ..... .. .... .......... O Other. .... ..... ... .... .. .. .. .... .... ...... ... ....... .......... ...... ...... ...... .......................... O

POLEY, J.

Petitioner commenced this O\I ner ' s use holdover proceedi11g seeking possession of

Apartment 2R at 8669 16 th A venue, Brooklyn, New York ("'Apartment" ) by service of the

Notice to Tenant on on-Renewal of Lease, Termination of Tenancy, Intention to Recover

Possession, and Notice of Petition and Petition ("Noti ce").

The proceeding first appeared on the court's calendar on October 12, 2023. Respondent

appeared by Brooklyn Legal Services on October 27. 2023 . On November 22 , 2023 ,

Respondent interposed an answer containing various affirmative defenses and counterclaims.

Subsequently, Respondent moved pursuant to CPLR~ 3211 (7) for an order dismissing the

proceeding based on the allegation that petitioner failed to state a cause of action alleging that [* 1] 1 of 7

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the predicate notice is insufficient and is defective and that the predicate notice was served more

than 150 days prior to the expiration of the lease term.

Respondents seek dismissal of the proceeding based on the allegation that the predicate

notice is insufficient as it fails to plead facts with sufficient specificity. The Notice as plead in

pertinent part states "TAKE NOTICE that the undersigned Landlord elects to terminate your

tenancy of the subject premises, now held by you pursuant to a lease. The premises now

occupied by you are governed by the Rent Stabilization Code and are subject to Rent

Stabilization. This Termination notice is being sent to/served upon you in accordance with RSC

Section 2524.2, and RSC section 2524.4(a)(l), in that the landlord is seeking possession of your

apartment for owner occupancy based on an immediate and compelling necessity for her own

personal use and occupancy as her primary residence ' (Notice Par 1). The Notice further sets the

vacate by date and advises respondent of the legal proceedings to be commenced in the event

respondent fails to vacate.

Respondent argues that the otice fai ls to state any specific facts of the underlying

owner's use claim. Specifically, the Notice fails to whether the intent to occupy the premises is

in good faith or any other facts regarding the immediate and compelling need to reside at the

premtses.

Petitioner opposes and alleges that the notice is sufficient on its face and is specific enough

to appraise the respondents of the cause of action against them to enable respondents to frame a

defense. Petitioner argues that pleadings which allege intent to recover possession and use of

the apartment for occupancy by the Petitioner is specific and satisfies the requirements of Real

Property and Proceeding Law (RPAPL)§ 741(4) and Rent Stabilization Code (RSC)§ 2524.2(b).

Petitioner also argues that Respondent waived the jurisdiction defenses because

Respondent's answer was filed nearly a month after filling a notice of appearance. Petitioner [* 2] 2 of 7

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also opposes the dismissal asserting that a "reasonableness test" is the correct standard to

determine the sufficiency of the predicate notice. Petitioner argues that the notice is sufficient

and satisfies the requirements of Rent Stabilization Code (RSC) § 2524.2(b) if "it declares an

owner's intent to occupy the unit immediately after the tenant vacates" and that intent is

demonstrated by Petitioner's affidavit with the facts surrounding her immediate and compelling

need to take the apartment for herself and her elderly father.

In reply, Respondent asserts that dismissal is warranted as the predicate notice is

insufficient because it fails to plead facts with sufficient specificity and includes no facts

beyond conclusory statements. Respondent argues that the otice fails to state

any specific facts of the underlying owner's use claim. Specifically, the Notice fails to

"include facts necessary to establish an immediate and compelling necessity for Petitioner' s

personal use and occupancy as her primary residence and/or for the use and occupancy of a

member of her immediate family as their primary residence. Respondent further provides that

the affidavit annexed to petitioner' s Affirmation in Opposition, which establishes the facts

surrounding her alleged immediate and compelling need, is inappropriate as these facts were

absent from the non-amendable otice of Nonrenewal.

RSC §2524.2(b) requires that "every notice to a tenant to vacate or surrender possession

of housing accommodation shall state the ground ... upon which the owner relies for removal or

eviction of the tenant, the facts necessary to establish the existence of such ground, and the date

when the tenant is required to surrender possession." It is well settled that a notice of

termination that only tracks the statutory language is not sufficient. "In the absence of any factual

recitation of the reasons the landlord seeks to recover possession, the notice [i s] insufficient to

serve as a predicate for eviction proceedings." (Numano v Vicario , 165 Misc2d 457, 458 9 [App

Tem1, 151 Dept 1995], citing Berkeley Assoc. Co. v Camlakides, 173 AD2d 193 [l I Dept 1991 ], [* 3] 3 of 7

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ajfd 78 NY2d 1098 [ 1991 ]).

The Appellate Courts have consistently held that the reiteration of the statutory language

in a notice of non-renewal based upon the ground of owner occupancy alone cannot sustain an

eviction proceeding. (See, Baumann v Hail, NYLJ, Jan. 19, 1996, at 25, col 2 (App Term, 1st

Dept). The statements in an owner's use notice must set forth allegations fact specific to the

particular proceeding. (See, Haruvi v Rosen, 10 Misc3d 137(A) [App Term, 1st Dept 2005)

(notice of non-renewal which simply gave the landlord's current address but failed to state any

reason why the landlord wished to relocate from his present address a few blocks away was

insufficient to serve as a predicate for the owner occupancy proceeding).

For example, in lsdahl v. Pogliani, 22 Misc3d 14 [App Term I st Dept 2008), the court

found that the notice alleging the owner wanted the apartment for an unnamed daughter was

insufficient because it failed to set forth allegations tending to support the stated ground for

eviction that were fact specific to that particular proceeding. However, the notice was found to

be sufficient when it identified petitioner 's son as the family member for whom owner sought to

recover the apartment, the date for respondent to vacate the unit, and stated that possession was

sought in good faith. (See Giancola v. Middleton, 73 AD3d 1056 [App. Div. 2 nd Dept. 2010)).

Measured by this framework, the otice in this proceeding fails to meet the standards

set forth in the statute and by the appellate courts. Aside from alleging that the apartment is

needed for a "an immediate and compelling necessity for landlord's own personal use and

occupancy as her primary residence" the Notice as plead is bereft of any particularity. The

alleged need is not specified and does not list any reason(s) why Petitioner needs to move into

the subject apartment which has been occupied by a rent stabilized tenant. (See, Giancola v.

Middleton, supra).

Accordingly, respondent's motion is granted. The proceeding is dismissed with [* 4] 4 of 7

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prejudice.

This constitutes the decision and order of this court and is uploaded to NYSCEF>

Brooklyn, ew York Dated: May 8, 2024

[* 5] 5 of 7

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NYSCEF DOC. NO. 21 NYSCEF DOC . NO. 8 RECEIVED REC EIVEDNYSCEF: NY SCEF :05/08/2024 12 /22/2023

CIVIL COURT OF THE CITY OF NEW YORK COUNTY OF KINGS: HOUSING PART C - - - - - -- - - - - -- - -- - - -X PARASHQEVI KOTI

Petitioner, Index No. L&T 316254-23/KI -against- NOTICE OF MOTION TO DISMISS

MAYRA VASQUEZ "JOHN DOE" A D "JANE DOE" ON CALENDAR: 1/ 16/23 8669 16TH A VENUE, APT. 2R BROOKLYN, NY 11214

Respondents- tenants,

- -- - - - - - - - - -- -- -- -- X

PLEASE TAKE NOTICE that upon the annexed affidavit of Coco Joly, sworn to on

December 22, 2023 , the annexed exhibits, and upon all papers and proceedings previously had

herein, Respondent will move this Court in Part C of the Courthouse at 14 l Livingston Street,

Brooklyn, . ew York, room 402 on January 16, 2024 at 9:30 a.m., or soon thereafter as counsel

can be heard, for an order:

1. Dismissing the petition pursuant to C.P.L.R. § 321 l(a)(7), for failure to state a

cause of action due to deficiencies in the predicate notice and pursuant to

N.Y .C.R.R. § 2524.2(c)(3) for serving the predicate notice more than l 50 days prior

to the expiration of the lease term or, in the altemati ve,

2. Granting such other and further relief as this Court may deem just and proper.

Dated: December 22, 2023 Brooklyn, NY

Respectfully Submitted, [* 6] 6 of 7

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Attorneys for Respondent By, Coco Joly l 05 Court Street, 4th Floor Brooklyn, New York 11201 (718) 233 -641 l

To: SIDDIQI LAW GROUP, P.C. 71 -58 Austin Street, Suite l 02 Forest Hills, NY 11375 Attorney for Petitioner-Landlord

Clerk of Court [* 7] 7 of 7