NY FAMILY EVICTION - THE RULE APPLIES TO ALL TENANTS AT SUFFRANCE

In this case, the court held that summary proceedings against a "Tenant at Sufferance" must be an action in ejectment in Supreme Court.

Gomez v. Gomez, 2026 NY Slip Op 26006 - NYC Civ Ct., Kings Co. 2026:

"KAREN MAY BACDAYAN, J.

On May 7, 2025, petitioner, Gerard Gomez ("petitioner"), commenced this holdover proceeding commenced against family members, Joseph Alfred Gomez, Beverley Bailey, Isaiah Gomez ("respondents"), predicated upon a 30-day notice of termination of respondents' tenancy at sufferance served pursuant to Real Property Law ("RPL") § 228. Respondents filed a motion on February 6, 2025, seeking summary judgment based on improper service of the notice to quit. (NYSCEF Doc No. 31.) By the decision and order dated April 22, 2025, the Hon. Madelina Danescu held that the service requirements under Real Property Actions and Proceedings Law ("RPAPL") § 735 are not applicable to a notice of termination of a tenancy at sufferance pursuant to RPL 228 which provides for it's own method of service. (NYSCEF Doc No. 31.) The proceeding was transferred to the trial part, and adjourned for trial. On the trial date, respondent orally argued that this court lacks subject matter jurisdiction over RPL § 228 proceedings to dispossess tenants at sufferance. (See NYSCEF Doc No. 22, amended answer.) As subject matter jurisdiction may be challenged at any time, even on appeal, the court invited briefing on this novel issue and issued a order for the parties' respective memoranda of law. (NYSCEF Doc No. 48.)

ARGUMENTS

Respondents, tenants at sufferance, contend that petitioner is relegated to commencing an action for ejectment in Supreme Court under Article 6 of the RPAPL; and that the 2019 amendment to RPAPL 711 which states that "[n]o tenant or lawful occupant of a dwelling or housing accommodation shall be removed from possession except in a special proceeding" does not reflect any legislative inten[t] to abrogate RPAPL Art[icle] 6 as applied to residential possession[.]" (NYSCEF Doc No. 49, respondents' memorandum of law at 1-2.)^[1]

Respondents rely heavily on the fact that RPAPL Article 7 nowhere specifically provides that the Housing Court may entertain a summary proceeding against a tenant at sufferance or at will. Respondents direct the court's attention to the language of RPL 228 which provides that upon the expiration of the 30-day notice, "the landlord may re-enter, maintain an action to recover possession, or proceed, in the manner prescribed by law, to remove the tenant, without further or other notice to quit." Respondents emphasize that the predecessor statute to RPL 228 — provided that upon expiration of said notice, the landlord could either "re-enter, maintain ejectment, or proceed, in the manner prescribed by law, to remove the tenant, without further or other notice to quit." Thus, respondent surmises that in 1962 — the same year that both RPL 228 was enacted and the legislature created Article 7 of the RPAPL — the legislature merely substituted the language "an action to recover possession" for "ejectment," and did not grant any relief under RPAPL Article 7 to seek possession via a summary proceeding after termination of a tenancy at sufferance.^[2] This, respondents argue, "indicates a legislative intent that recovery of such long-term occupancy be by action (further established by the requirement of RPAPL §641, specifying a `complaint' as the commencing pleading)." (Id. at 4.) More succinctly, respondents' position is that "the absence of the termination of tenancies at sufferance from RPAPL Article 7 forms a statutory mandate to litigate same as an action. As this Court lacks subject matter to adjudicate or convert an action, it is without any option other than to dismiss." (Id. at 6.)

Respondents distinguish a recent case, 1114 JOJ Ave Corp. v. Ramlogan, 240 NYS 3d 898, 901 (Civ Ct, Queens County 2025), rearg denied, 87 Misc 3d 1202(A), 2025 NY Slip Op 51438(U) (Civ Ct, Queens County 2025), in which the court denied a motion to dismiss a proceeding predicated on a RPL § 228 notice served upon a commercial tenant. Respondents argue that the Ramlogan court did not recognize summary eviction proceedings as a valid alternative to an ejectment action to recover property from a tenant at sufferance.

Petitioner opposes respondents' arguments on several bases, and begins its opposition with their own version of the historical context. Respondent states that prior to 1820 ejectment actions were the primary vehicle to regain possession of a residential tenancy, which was impractical for residential tenancies; ejectment actions were "notoriously slow, technical, and ill-suited for the burgeoning urban centers of New York[,]" which "created a pressing need for a more efficient method of eviction." (NYSCEF Doc No. 50, respondents' attorney's mem of law at 3.) For this reason, petitioner argues, in 1820, the summary proceeding was enacted. (L 1820, ch CXXIV.)

Second, petitioner advances that in 1828, in reaction to the decisions like Bradley v. Covel, 4 COW 349, 1825 WL 1682 (Sup Ct, New York County 1825), the legislature amended the 1820 statute which had required a three month notice to quit for tenancies at sufferance. Covel held that the service of a three-month notice to quit a tenancy at will terminated the prior tenancy and created an "implicit agreement" to hold over from year to year at the former rent, thus requiring a second six-month notice to quit. (Id., *351; RPL § 228.) Petitioner posits that the legislature's response was to pass an amended statute to require only one-month's notice for an ejectment action ("without further or other notice to quit"), evincing a legislative intent to restore the "efficiency of a summary proceeding" and "enabling faster evictions" premised upon a tenancy at sufferance. (NYSCEF Doc No. 50 at 8, mem of law.)

Third, petitioner argues that the Revised Statutes of 1828, "established the tripartite structure of remedies that remains in RPL § 228 today." (Id.) Thus, a landlord may choose from the list of disjunctive remedies, to wit, the statute allows that "the landlord [1] re-enter, [2] maintain an action to recover possession, or [3] proceed, in the manner prescribed by law, to remove the tenant, without further or other notice to quit." Petitioner argues that "in the manner prescribed by law" is intended to mean a "summary proceeding."

In the next several sections of petitioner's memorandum of law, petitioner's arguments continue in this vein, laying out what petitioner calls "an unbroken chain of legislative intent" that RPL § 228 are summary proceedings and creatures of Housing Court.

"From 1920 until the enactment of the RPAPL in 1963, summary proceedings were governed by Article 83 of the Civil Practice Act88. The text of CPA § 1410 could not have been clearer: `In either of the following cases, a tenant or lessee at will, or at sufferance, or for part of a year, or for one or more years, of real property, may be removed therefrom, as prescribed in this article . . ." This was not an implication, a judicial interpretation, or an administrative practice. This was the black-letter statutory law of New York State. The Legislature explicitly enumerated `tenant . . . at sufferance' among those who "may be removed" through summary proceedings "as prescribed in this article". The language is mandatory and unambiguous." (NYSCEF Doc No. 50 at 13.)

Petitioner further argues that recent developments and amendments which did not eliminate the language "proceed, in the manner prescribed by law" signal a clear intention of the legislature not to bar a landlord from commencing a summary proceeding to recover possession of a premises from a tenant at sufferance. (Id. at 11.) Petitioner posits that "[i]t makes no sense for the Legislature to mandate a notice requirement for the more cumbersome ejectment remedy while simultaneously foreclosing the expedited summary proceeding remedy that the notice is designed to enable." (Id. at 21.)

Finally, petitioner advances that respondents' argument violates the Housing Stability and Protection Act of 2019 ("HSTPA") which includes the "unequivocal mandate that "[n]o tenant or lawful occupant of a dwelling or housing accommodation shall be removed from possession except in a special proceeding." (Id. at 21.) Petitioner advances that "[f]or residential properties, summary proceedings (special proceedings under RPAPL Article 7) are not merely an option[,] [t]hey are the exclusive legal mechanism for removing tenants and lawful occupants (bold in original, italics substituted)." (Id.) Tenants at sufferance are "unquestionably" not only tenants, but lawful occupants. (Id.) The legislatures choice of words, petitioner contends, evinces "an intent to capture a broad category of persons who have some basis for their initial possession."

Respondent dismisses petitioner's memorandum of law as "rambling and conclusory," and based only on recitation of "decades old law journal articles," and not upon the plain statutory text nor any case law. (NYSCEF Doc No. 51 (respondents' mem of law at 1-2.) Respondent advances that petitioner failed to address that "the distinguishing factor between a tenancy at sufferance and a summary holdover is that `delay or laches on the part of the landlord is a necessary component [in] establishing a tenant at sufferance[,]'" citing to 1114 JOJ Ave Corp. v. Ramlogan, 240 NYS 3d 898, 901 (Civ Ct, Queens County 2025), rearg denied, 87 Misc 3d 1202(A), 2025 NY Slip Op 51438(U) (Civ Ct, Queens County 2025). Because of this element of delay, respondent advances that there is no injustice in requiring a landlord to resort to an ejectment action as "the property owner has lull[ed] occupants into a false sense of stability in their home." (NYSCEF Doc No 51, respondents' reply mem of law at 3.) Respondent reiterates that "where a particular type of occupant is not designated within RPAPL Article 7, the [c]ourt lacks jurisdiction to hear the proceeding." (Id. at 5-6.)

Here, there is no dispute in this proceeding that respondents are tenants at sufferance. (NYSCEF Doc No. 20 at 3, decision and order striking seventh affirmative defense; NYSCEF Doc No. 21, notice of entry.) And it has been decided herein that the requisite notice pursuant to RPAPL § 228 to terminate a tenancy at sufferance was properly served. (Gomez v. Gomez, 2025 NY Slip Op 50609[U], 85 Misc 3d 1263[A]; NYSCEF Doc No. 31, decision and order; NYSCEF Doc No. 35, notice of appeal.) The sole question before this court is whether the New York City Housing Court has subject matter jurisdiction over this summary proceeding to recover possession of a premises from a tenant at sufferance.

This court holds that the Housing Court does not have jurisdiction over summary proceedings commenced after expiration of a notice to quit which has been served pursuant to RPL § 228.

DISCUSSION

The plain language of the New York City Civil Court Act ("CCA") § 110(c) vests the Housing Part of the Civil Court of the City of New York with subject matter jurisdiction over "all summary proceedings to recover possession of residential premises to remove tenants therefrom." CCA 204 ("Summary proceedings") provides in relevant part: "The court shall have jurisdiction over summary proceedings to recover possession of real property located within the city of New York, to remove tenants therefrom, and to render judgment for rent due without regard to amount[.]"

RPAPL 711(1) provides the grounds where a landlord-tenant relationship exists and presumes an agreement for possession between a petitioner and a respondent which is not implied but which arises from an arrangement of some kind, for example, a lease, an occupancy agreement, or an oral month-to-month tenancy. Alternatively, RPAPL 713 ("Grounds where no landlord-tenant relationship exists") provides the specific bases for removal of occupants in a summary proceeding who did not enter into possession pursuant to an agreement with the individual or entity seeking possession.

None of the above authorities confer jurisdiction upon the Housing Part to hear actions to recover possession of common law residential tenancies which have not been codified by statute. The absence of any mention of tenancies at sufferance RPAPL Article 7 is conspicuous given that the legislature has codified other common law causes of action and required specific notices which must be served pursuant Article 7's unique service statute. (RPAPL 735.) For example, RPL § 232-a as amended, allowing for a summary proceeding against a residential tenant upon notice pursuant to RPL 226-c,^[3], ^[4] but requiring notice of only 30 days prior to commencement for other than residential holdovers. Relatedly, RPAPL 735 prescribes the method for service of notices in summary proceedings while RPL § 228 requires a method of service distinct from that in summary proceedings. (Gomez v. Gomez, 2025 NY Slip Op 50609[U], 85 Misc 3d 1263[A] [the court determined that service had been effected properly pursuant to RPL § 228, but was not asked to decide whether or not Housing Court has subject matter jurisdiction over summary proceedings.]

"In reality a tenancy by sufferance is not a tenancy at all. It is merely not an adverse possession. It is an estate created, not by consent, but by the laches of the owner; and, without laches on the part of the owner, there can be no estate by sufferance." (Robert F. Dolan, Rasch's Landlord and Tenant, Including Summary Proceedings § 30:37 [5th ed, May 2025 update].) "A tenancy at sufferance exists where a person once maintained a valid possessory interest in property who then wrongfully continues in possession after the termination of the interest. . . . In addition, to create a tenancy at sufferance there must be a delay by the owner seeking recovery of the premises." (Ramlogan, 240 NYS3d 898 at 901 [internal citations and quotation marks omitted].) "A tenancy at sufferance does not require any prior relationship between the parties at all. . . . [A] tenancy at sufferance arises at common law when an occupant continues in possession after a possessory interest terminates and the occupant has no privity to the party entitled to possession[.]" (Id.) Tenants at sufferance are entitled to a 30-day notice to quit. (RPL § 228.)

RPL § 228 provides:

"A tenancy at will or by sufferance, however created, may be terminated by a written notice of not less than thirty days given in behalf of the landlord, to the tenant, requiring him to remove from the premises; which notice must be served, either by delivering to the tenant or to a person of suitable age and discretion, residing upon the premises, or if neither the tenant nor such a person can be found, by affixing it upon a conspicuous part of the premises, where it may be conveniently read. At the expiration of thirty days after the service of such notice, the landlord may re-enter, maintain an action to recover possession, or proceed, in the manner prescribed by law, to remove the tenant, without further or other notice to quit."

Recent Relevant Cases

Recently, the propriety of commencing a summary proceeding against tenants at sufferance has captured the interest of the bar and the bench, but not the legislature. Prior to two recent cases — 1114 JOJ Ave Corp. v. Ramlogan, 240 NYS 3d 898, 901 (Civ Ct, Queens County 2025), rearg denied, 87 Misc 3d 1202(A), 2025 NY Slip Op 51438(U) (Civ Ct, Queens County 2025), and Macias v. Macias, 2025 NY Slip Op 51627(U), 87 Misc 3d 1219(A])(Civ Ct, Queens County 2025) — the subject matter jurisdiction of the Housing Court to hear cases involving these common law tenancies years was largely presumed and not parsed.^[5] Cases involving tenancies at sufferance are a miniscule percentage of the tsunami of cases heard every year in Housing Court. Over the years, courts have only tacitly suggested, without serious contest, even at the appellate level, that Housing Court has jurisdiction over tenancies at sufferance. Only in the last year has the issued been squarely addressed.

In Ramlogan, 240 NYS3d 898 (Civ Ct, Queens County 2025), rearg denied, 87 Misc 3d 1202(A), 2025 NY Slip Op 51438(U) (Civ Ct, Queens County 2025), the court dismissed the respondents' argument that the petition was fatally defective as it improperly pleaded that the proceeding was a summary proceeding pursuant to RPAPL 711(1). The court agreed with respondents that tenancies at sufferance are not RPAPL 711(1) summary proceedings, but ignored the "excess verbiage" and found that "[t]he fact the relief sought is actually pursuant to RPL §228 does not render the entire petition improper." (Id. at 903.) The court also rejected the respondents' argument that they were not "tenants at sufferance because `a tenancy by sufferance cannot be created where there was never a landlord-tenant relationship to begin with[.]'" (240 NYS3d at 902.) The Ramlogan court also

In its original decision, the court in Ramlogan was not concerned with the subject matter jurisdiction of the New York City Housing Court to hear proceedings to terminate tenancies at sufferance. (Ramlogan, 240 NYS 3d 898.) However, upon reargument, the court was pressed to answer the question. (Ramlogan, 87 Misc 3d 1202(A), 2025 NY Slip Op 51438(U), *2 ["the question that must be addressed, that has not been discussed in any case, is whether RPL §228 can provide the necessary `procedural vehicle' to maintain a summary eviction proceeding notwithstanding the fact a tenant at sufferance is not included within RPAPL Article 7 [emphasis added].") The Ramlogan court adhered to its prior decision that notice pursuant to RPL § 228 is a sufficient predicate to a summary proceeding, and continued further to posit that "the logical and natural impact of RPL § 228 is to permit a summary proceeding to remove a commercial tenant at sufferance[.]" (2025 NY Slip Op 51438[U], *3.)

Based upon prior practice, and not precedent, the Ramlogan court concluded that "the numerous cases cited that have so held surely endorse this view."^[6] (2025 NY Slip Op 51438[U], *3.) The court acknowledged that, unlike other statutes which specifically provide for a summary proceeding, referring to RPL 232-a ("Notice to terminate monthly tenancy or tenancy from month to month in the city of New York"), there is no such language in RPL § 228. Even so, the court determined that "RPL § 228 surely allows a summary proceeding." (Id. at *3; cf. Mastas v. Extra Closet, Inc., 146 Misc 2d 698, 700 [Civ Ct, Kings County 1990] [dismissing petition finding that respondents were tenants at sufferance and not subtenants and, thus, "no RPAPL summary proceeding would be available to petitioner."])

The Ramlogan court reasoned that because the legislature provided "an action to recover possession (emphasis added)," may be commenced after service of RPL § 228 notice, there is "sufficient authority to allow a summary proceeding notwithstanding its absence from RPAPL Article 7 (emphasis added)." (Ramlogan, 2025 NY Slip Op 51438(U), *3.) The Ramlogan court did not harmonize its prior holding in the decision under review that a proceeding to evict a tenant at sufferance is not an RPAPL 711(1) proceeding. Nor did the court explain why it found that a summary proceeding is the proper vehicle to regain possession from a tenant a sufferance when "the relief in [such a] case flows through RPL § 228, the specific statute enacted to deal with tenancies at sufferance and not RPAPL § 711(1) (emphasis added)." (Ramlogan, 240 NYS3d at 903.)

Also recently, in Macias v. Macias, supra, in the context of a residential holdover proceeding, the court undertook an analysis of the issue with which this court is now charged. The Macias court found that the Housing Court has subject matter jurisdiction over proceedings to terminate tenancies at sufferance. As in Ramlogan, the court rested its reasoning on the shoulders of numerous cases, some appellate, which have allowed a landlord to maintain a summary proceeding against a tenant at will or a tenant at sufferance. Contrary to the Ramlogan court, which opined that a proceeding against a tenancy at sufferance is not an RPAPL 711(1) proceeding, the Macias court held, "Therefore, as this summary holdover proceeding was commenced pursuant to RPAPL 711(1), the court has subject matter jurisdiction over this proceeding (emphasis added)." (Macias, 2025 NY Slip Op 51627[U], *3.)^[7]

Relatedly, in Olympic Galleria, Co. v. Sitt, 241 AD3d 1092 (1st Dept 2025), in the context of an ejectment action to oust a month-to-month tenant, the court declined — as does the court herein — to read into the law that which is not there, observing that the legislature has neither seen fit to bar ejectment actions against month-to-month tenants, nor to specifically prescribe a shorter notice for common law ejectment actions against such tenants. Thus, according to Sitt, a six-month notice is required if the landlord, for whatever reasons, chooses to proceed in Supreme Court pursuant to Article 6 of the RPAPL (`Action to Recover Real Property.'") (Sitt, 241 NY3d at 1093; cf RPL § 228.) The distinction between Sitt and the case at bar is that, in the case of month-to-month tenancies, the legislature has provided an alternative remedy in the form of a summary proceeding pursuant to RPL § 232-a which requires specifically legislated predicate notices when commenced in Housing Court. Unlike here, ejectment is not the exclusive remedy against month-to-month tenants because the legislature has written that it is not.

As observed in Sitt, "Despite the advent of the various statutory remedies available to a landlord beset with a recalcitrant tenant, "[t]he common-law principles governing the ejectment action are unchanged, unless explicitly modified by statute (emphasis added)." (Sitt, 241 AD3d at 1093; see also Alleyne v. Townsley, 110 AD2d 674, 675 [2d Dept 1985].) 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 (internal citation and quotation marks omitted)." (Allen v. Minskoff, 38 NY2d 506, 511 [1976].)

Here, the legislature has not created a summary proceeding to evict tenants at sufferance in Housing Court; rather, the legislature has provided only one modification to the common law cause of action against a tenant at sufferance, to wit, a specific notice in an ejectment proceeding where one did not exist before. (RPL § 228; Livingston v. Tanner, 14 NY 64, 66 [1856] ["at common law a tenant at sufferance was not entitled to notice to quit[.]" Like Article 7 of the RPAPL, which was legislated in derogation of common law, this modification must be strictly construed as the minimum notice that is to be given a tenant at sufferance in an ejectment action. Notably, the legislature has provided for an alternative summary proceeding against one kind of tenancy at sufferance, "the tenant of a life tenant,"^[8] but like § RPL 232-c, does not bar an ejectment action.

Common Law Causes of Action and Statutes Enacted in Derogation of Common Law

Neither the Ramlogan or Macias courts considered the critical interplay between the common law, and statutes enacted in derogation thereof. (See McKinney's Cons Laws of NY, Book 1, Statutes § 301 ["The common law is never abrogated by implication, but on the contrary it must be held no further changed than the clear import of the language used in a statute absolutely requires."]) Thus, an implication drawn from trial court decisions — or appellate cases for that matter — in which the subject matter jurisdiction of the Housing Court was not controverted nor specifically decided — cannot act to supplant the common law, or create a rule contrary to same.

As stated in People v. Phyfe, 136 NY 554, 558-559 (1893) the Court of Appeals opined:

"[I]t is a familiar canon of construction that an intention to change the rule of the common law will not be presumed from doubtful provisions, and the presumption is that no such change was intended, unless the enactment is clear and explicit in that direction; and, if the terms of the statute will admit of two interpretations, that which will most nearly conform to the rules of the common law is in all cases to be adopted."

The instant proceeding, as well as Ramlogan and Macias, illustrate that there is a disagreement regarding whether the legislature intended to create a cause of action in a summary proceeding against a tenant at sufferance. This disagreement must be settled by deference to the common law. As observed in Larned v. Hudson, 60 NY 102, 105 (1875), "The statute does not define what shall constitute a tenancy at will, but leaves that question to be determined by the rules of the common law." The rules of common law find no purchase in a statute which has been legislated in derogation of same and which must be strictly construed.

The amendment of RPL § 228 was enacted in reaction to a judicial interpretations of a former iteration of RPL § 228 with which the legislature disagreed, e.g. Bradley v. Covel, discussed supra, in order to clarify the legislature's intention that the notice to quit prescribed in RPL § 228 is the only notice required prior to ouster of a tenant at sufferance (or at will) and that an additional notice after the expiration of that notice is not required: "A tenancy at will or by sufferance, however created, may be terminated by a written notice of not less than thirty days . . . without further or other notice to quit." While petitioner would have the court imbue the legislative history of Article 7 with an intention to include all tenancies at sufferance within the realm of a summary proceeding where they specifically was not included in Article 7 when legislated — and amended and amended again — no act of the legislature has provided an explicit, alternative means of recovery through a summary proceeding for proceedings such as the instant proceeding. "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 an indication that its exclusion was intended (internal quotation marks and citations omitted)[.]" (See e.g. Commonwealth of N. Mariana Islands v. Canadian Imperial Bank of Com., 21 NY3d 55, 62 [2013]; see also Fitzgerald v. Washington, 80 Misc 2d 861, 870 (Civ Ct, New York 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], aff'd, 1 NY2d 775 1955].)

Neither are the numerous cases — cited by the Ramlogan and Macias courts to support a judicially created cause of action under Article 7 of the RPAPL — the kind of judicial precedent contemplated by the doctrine of stare decisis. This doctrine, which in Latin means "to stand by things decided" and which is fundamental to New York's common law system, requires New York courts to follow the rulings of higher courts in similar cases which have parsed the same legal issues. The previous deciding-court must have binding authority over the lower courts, otherwise the decision is merely persuasive authority which does not enjoy the gravitas of stare decisis.

Here, only two reported decision from courts of concurrent jurisdiction prior to this decision have been charged by motion to analyze whether or not the Housing Court has the subject matter jurisdiction to adjudicate the termination of tenancies at sufferance; and only one court has done so in the context of a residential eviction proceeding. It has been observed that "(t)he long time failure of Congress to alter (a statute) after it had been judicially construed . . . is persuasive of legislative recognition that the judicial construction is the correct one." (Apex Hosiery Co. v. Leader, 310 US 469, 488 [1940].) In the context of tenancies at sufferance, despite numerous opportunities to do so, the legislature has not acted to clarify either RPL § 228 or RPAPL Article 7. That the legislature has neglected to do so is no beacon of legislative intent where the only caselaw regarding the subject matter jurisdiction of the Housing Court to adjudicate these cases is less than a year old, and is contradictory. Accordingly, it would be premature to take any inference from legislative inaction at this point in time.

RPAPL Article 7 Was Enacted In Derogation of the Common Law

When a statute is enacted in derogation of the common-law rights of tenants, each provision . . . must be strictly construed so as to avoid termination[.] (Zenila Realty Corp. v. Masterandrea, 123 Misc 2d 1, 6 [Civ Ct, New York County 1984]; see also Wang v. James, 40 NY3d 497, 503 [2023], citing Morris v. Snappy Car Rental, Inc., 84 NY2d 21, 28 [1994] and McKinney's Cons Laws of NY, Book 1, Statutes § 301). "[A]s a statutory construct, summary proceedings must strictly comply with the provisions of RPAPL article 7." (200 Claremont Ave. Hous. Dev. Fund Corp. v. Est. of Lewis, No. 2024-07825, 2025 WL 3672337 (App Div, 1ts Dept 2025.) Statutes such as RPAPL Article 7, which are enacted in derogation of common-law rights, "may not be extended by implication[.]" (Gemelli v. Murdock, 273 AD 1019, 1019 [2d Dept 1948], aff'd, 298 NY 664 [1948].) In the case of tenancies at sufferance, there is nothing in the plain language of Article 7 to strictly construe. The same rule of strict construction must be applied to RPL § 228, a statute enacted in derogation of common law. "A tenant strictly at will was not, prior to the Revised Statutes, entitled to notice to quit[.]"

Many Housing Court judges, including appellate courts considering Housing Court decisions, have construed whether a tenancy at sufferance or at will exists by applying common law principles. (See e.g. 4720 Avenue, Inc. v. Harley House, 81 Misc 3d 139[A], 2023 NY Slip Op 51459[U], *1 [App Term, 2nd Dept 9th & 10th Jud Dists 2023] [stating that tenancy at sufferance arises at common law when an occupant continues in possession after a possessory interest terminates and the occupant has no privity to the party entitled to possession."]) But the common law finds no application in a statute specifically enacted in derogation of common law definitions and procedures, i.e. RPAPL Article 7, which must be strictly construed.

The Appellate Term, Second Department, endorses the strict construction of summary proceedings commenced pursuant to RPAPL Article 7. For example, in Sequoia Partners, LLC v. Najabat Ali, 67 Misc 3d 133(A), 2020 NY Slip Op 50493(U) (App Term, 2d Dept, 9th & 10th Jud Dists 2020), the court dismissed a summary proceeding, holding that "[w]hile RPAPL 713(5) is apparently the claimed basis for this proceeding, petitioner, a purchaser from a purchaser in foreclosure, lacks standing to maintain such a proceeding, and "this proceeding is not maintainable pursuant to any other provision of RPAPL 713." In Castle Peak 2012-1 REO, LLC v. New York Found. for Senior Citizens, 63 Misc 3d 157(A) 2019 NY Slip Op. 50834(U), * 2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019] the Appellate Term, Second Department opined,

"There is no provision in the RPAPL which allows for the maintenance of a summary proceeding by a purchaser in lieu of foreclosure. RPAPL 713(5) allows for a proceeding by the holder of a deed only where that deed was delivered pursuant to a foreclosure sale, which did not occur here. The parties cannot by consent create a summary proceeding where the legislature has not provided for one. `As the right to maintain summary proceedings did not exist at common law and is solely a creation of statute, it applies only in those cases authorized by the statute' (Dulberg v. Ebenhart, 68 AD2d 323, 328 [1979].)"

While inertia creates a temptation to adopt petitioner's reasoning that, "[i]t makes no sense for the Legislature to mandate a notice requirement for the more cumbersome ejectment remedy while simultaneously foreclosing the expedited summary proceeding remedy that the notice is designed to enable," NYSCEF Doc No. 50 at 21, a "court[] must construe clear and unambiguous statutes as enacted and may not resort to interpretative contrivances to broaden the scope and application of statutes." (Sitt, 241 AD3d at 1093.) While it is convenient to surmise that the legislature intended to include tenancies at sufferance and tenancies at will within the ambit of summary proceedings under Article 7 of the RPAPL, for over a century and the passage and amendment of numerous new laws, the legislature has not articulated this intention; nor has the legislature amended Article 7 or the Real Property Law to create an alternative summary proceeding option for termination of common law tenancies at will or at sufferance. (Compare RPL § 232-a; see n 2, supra; compare also RPAPL 713[6] which specifically allows for a summary proceeding against a tenant of a life tenant.))

CONCLUSION

Tenancies at sufferance, "however created," are found in a variety of situations which are more complicated than traditional landlord-tenant relationships and occupancy agreements, RPAPL 711(1); or those specifically legislated causes of action where there is "no landlord-tenant relationship." (RPAPL 713.) Issues involving tenancies at sufferance arise, as here, between family members, in situations involving foreclosure, deed fraud, and thorny title disputes. Such cases often require broader jurisdiction than that afforded the Housing Court, as well as a less summary and much more fact specific analysis.

The court is cognizant that many of the landlords faced with a tenant at sufferance are small property owners who may be disproportionately affected by the ostensibly daunting task of filing a plenary action. However, "[i]f that is an undesirable result, the problem is one to be addressed by the Legislature[,]" Chazon, LLC v. Maugenest, 19 NY3d 410, 416 (2012), and whether by accident or design, the legislature "has not [yet] spoken in the unmuted strains necessary to displace the common law." (Hechter v. New York Life Ins. Co., 46 NY2d 34, 39 [1978].)

Accordingly, it is hereby

ORDERED that the proceeding is dismissed as there is no provision under RPAPL Article 7 which provides for subject matter jurisdiction of the Housing Court over proceedings to oust a tenant at sufferance. This dismissal is without prejudice to a plenary proceeding.

This constitutes the Decision and Order of the Court.

[1] Respondents advance that, as a general proposition, tenants at sufferance will be deprived of their fundamental right to trial by jury, not requested herein, should the court find it may "hear an action in ejectment of a tenant at sufferance as a summary proceeding[.]" (Id. at 2.)

[2] It is true that nowhere in Article 6 of the RPAPL is the term "ejectment" employed.

[3] RPL § 232-a provides in full: "No monthly tenant, or tenant from month to month, shall hereafter be removed from any lands or buildings in the city of New York on the grounds of holding over the tenant's term unless pursuant to the notice period required by subdivision two of § 226-c (Notice of rent increase or non-renewal of residential tenancy), or for a tenancy other than a residential tenancy at least thirty days before the expiration of the term, the landlord or the landlord's agent serve upon the tenant, in the same manner in which a notice of petition in summary proceedings is now allowed to be served by law, a notice in writing to the effect that the landlord elects to terminate the tenancy and that unless the tenant removes from such premises on the day designated in the notice, the landlord will commence summary proceedings under the statute to remove such tenant therefrom (emphasis added)."

[4] RPL 232-a now incorporates RPL 226-c which varies the notice period provided to a month-to-month tenant in a summary proceeding depending on the length of occupancy (from 30 days' notice for cumulative occupancy of one year or less, with a cap of 90 days for tenants who have occupied the premises for two or more years). The legislature did not incorporate RPL § 226-c into RPL § 228, further differentiates actions against tenants at sufferance from the requirements of a summary proceeding.

[5] This judge has adjudicated proceedings involving tenancies at sufferance and at will, however, the court has never been asked, as here, to specifically decide the subject matter jurisdiction of the Housing Court over tenancies at sufferance or at will.

[6] It is noted that the cases cited are among the cases tacitly accepting the jurisdiction of the Housing Court where the issue of subject matter jurisdiction was not raised.

[7] Pusatere v. City of Albany, 214 AD3d 91 (3d Dept 2023), cited in Macias as authority for NYC Housing Court's jurisdiction to hear summary eviction proceedings against tenants at sufferance and decided prior to the enactment of the Good Cause Eviction Law, is inapt. That decision simply found that the code of the city of Albany was pre-empted by state law which did not require a landlord to demonstrate additional good cause to evict a tenant at sufferance or tenant at will. The proceeding was dismissed based on RPAPL 741(6), L 2022, ch 615, § 1, which is specific to the city of Albany and provides: "In the city of Albany, where the premises from which removal is sought is subject to a local law requiring the registration of said premises as a condition of legal rental, allege proof of compliance with such local law." Accordingly, the Pusatere court held, "that section is not preempted" but did not parse subject matter jurisdiction. Id. at 96.

[8] RPAPL 713(6) states in full "He is the tenant of a life tenant of the property, holding over and continuing in possession of the property after the termination of the estate of such life tenant without the permission of the person entitled to possession of the property upon termination of the life estate.""

NY - FORCING LANDLORD TO MAKE REPAIRS CAN BE A PROCESS

New York Real Property Actions and Proceedings Law (RPAPL) Article 7-D was enacted into law in 2022 and became effective on December 30, 2023.  The law was sponsored as the Tenant Dignity and Safe Housing Act. It was designed to provide tenants outside of New York City with an effective legal mechanism to compel landlords to make necessary repairs for housing code violations.

Has it worked? Yes and no - it still involves litigation and so it is not instant relief. Here is a story about some tenants' experience with the procedure in upstate New York.

See TIMES UNION: In upstate New York, renters can sue landlords, sometimes at heavy cost

NY - LANDLORD CAN'T COLLECT RENT IN SMALL CLAIMS COURT WITH ILLEGAL APARTMENT

Here I am assuming there was a prior summary proceeding in L&T Court, the landlord wanted the premises and entered into a stipulation for immediate surrender and hoped to collect rent in a plenary action.

NELSON-TAYLOR v. Brooks, 2025 NY Slip Op 50314 - NY: City Court, Queens Civil Court 2025:

"A small claims trial was conducted wherein the claimant landlord seeks rent owed in the amount of $9,375. There is really no dispute the defendants, tenants in a two-family dwelling, owe the rent sought. The defendants argue they are not required to pay the rent since the dwelling contained an illegal basement apartment which suspended the landlord's right to collect rent from any tenant. The landlord disputed that any illegal residence existed in the basement. The court heard testimony and has reviewed that testimony as well as all the evidence submitted.

On December 1, 2007 the parties entered into a one year lease for a unit located at 246-11 Memphis Avenue in Rosedale, New York. In September 2019 the tenants stopped paying rent and the landlord commenced a landlord-tenant action. The parties entered into a stipulation on February 3, 2020 and the defendants agreed to vacate the premises. The rental arrears, the subject of this action, were severed pursuant to the stipulation agreement. As noted, the defendants argue they cannot be required to pay any rent since the existence of an illegal apartment rendered the premises subject to the Multiple Dwelling Law. This designation required the landlord to obtain a new certificate of occupancy to conform to the change of use within the premises. Without such certificate of occupancy they assert they do not have to pay any rent. The claimant asserts the basement was not used as an additional dwelling and there is no basis for the defendants to withhold rent that is owed.

Conclusions of Law

A review of all the evidence demonstrates the defendants sufficiently established the basement apartment was used as an additional dwelling. The defendants presented testimony as well as supporting documentation in the form of photographs and documents that establish another individual resided in the basement. Thus, the defendants satisfied their burden regarding their defense of nonpayment of rent. However, that does not end the inquiry. The next question that must be addressed is whether an illegal apartment suspends the payment of rent by every tenant of the premises.

Multiple Dwelling Law §301(1) states that no multiple dwelling may be occupied without a valid certificate of occupancy. Further, Multiple Dwelling Law §302(1)(a) and (b) states that if a dwelling is occupied in whole or in part without a certificate of occupancy then "no rent shall be recovered by the owner of such premises for said period" (id). Therefore, if a building does not maintain a valid certificate of occupancy then no rent may be collected from any unit (Caldwell v. American Package Company Inc., 57 AD3d 15, 866 NYS2d 275 [2d Dept., 2008]). However, there is a disagreement whether rent can be collected from a legal apartment in a building that also maintained illegal units for which no certificate of occupancy existed. For example, in De La Cruz v. Miller, 2023 WL 5351006 [Supreme Court Kings County 2023] the court noted that "although the lack of a proper certificate of occupancy for a rent-controlled apartment precludes a landlord from recovering rent or use and occupancy for that apartment, it does not preclude a landlord from recovering rent or use and occupancy for apartments unaffected by the certificate of occupancy violations" (id). Again, in Santiago v. Perez, 1992 NYLJ LEXIS 8800 [Civil Court Queens County 1992] the court held that tenants of a legal unit could not avoid paying rent merely because an illegal unit existed if the tenants of the lawful unit were unaffected by the illegal possession. The court concluded it would be "inequitable" and akin to unjust enrichment to permit the tenants of a lawful unit to avoid rent merely because an apartment unit in the building was illegal. Recently, in Taubes v. Yorkshire House Associates LLC, 2024 WL 1117155 [Supreme Court New York County 2024] the court again held that the tenant of a lawful apartment was required to pay rent where that apartment was unaffected by any certificate of occupancy violations in other portions of the building (see, also, Chan v. Kormendi, 118 Misc 2d 1026, 462 NYS2d 943 [Civil Court Queens County 1983] finding that prohibiting a landlord from receiving rent from a legal apartment because an illegal basements exists is "inequitable" and "grossly injurious" and that "the penalty or sanction should fit the crime" [id]).

There are cases, indeed, the majority of cases, that hold the exact opposite, namely the failure to maintain a valid certificate of occupancy exempts every tenant from paying rent. Thus, in West 47th Holdings LLC v. Eliyahu, 64 Misc 3d 133(A), 116 NYS3d 843 [Supreme Court Appellate Term First Department 2019]) the landlord subdivided two apartments into four units which required a new certificate of occupancy. The court held that without that new certificate, any occupancy was in violation of Multiple Dwelling Law §301 and consequently no action for the nonpayment of rent was permissible. The court concluded this was true "even if tenant's apartment was not one of the newly created apartments" (id). Again, in 936 TYH RM Bronx LLC v. Brujan, 2022 WL 15524927 [Civil Court Bronx County 2022] an illegal unit existed in the cellar of the premises. The court held that no rent could be collected rent from any tenant "even if the tenant's unit is not the illegal unit" (id, see, also, 1165 Fulton Ave HDFC v. Goings, 65 Misc 3d 1210(A), 119 NYS3d 9 [Civil Court New York County 2019], GMT 3435 Realty LLC v. Hyman, 83 Misc 3d 1287(A), 216 NYS3d 508 [Civil Court Bronx County 2024], GVS Properties LLC v. Vargas, 59 Misc 3d 128(A), 100 NYS3d 609 [Appellate Term First Department 2018], 208 Nimrod Street LLC v. Irizarry, 42 Misc 3d 145(A), 988 NYS2d 526 [Appellate Division Second Department 2014], Kaloedas v. Garcia, 76 Misc 3d 482, 174 NYS3d 194 [City Court Yonkers 2022], 28 Poplar LLC v. Matos, 2023 NYLJ LEXIS 2023 [City Court Yonkers 2023] both interpreting identically worded Multiple Residence Law §302-a).

Considering these conflicting results a review of the statutory definitions that govern these facts will prove helpful. Pursuant to MDL §4(7) a multiple dwelling is defined as "a dwelling that is either rented, leased, let or hired out, to be occupied, or is occupied as the residence or home of three or more families living independently of each other" (id). Where the owner of a legal two-family dwelling converts a basement to a residential unit then the building is classified as a de facto multiple dwelling. Further, "an owner of a de facto multiple dwelling who fails to obtain a proper certificate of occupancy or comply with the registration requirements of the Multiple Dwelling Law cannot recover rent or use and occupancy" (Malden v. Wykoff S.P. LLC, 192 AD3d 1002, 146 NYS3d 143 [2d Dept., 2021], see, also, Shiela Properties Inc., v. A Real Good Plumber Inc., 59 AD3d 424, 874 NYS2d 145 [2d Dept., 2009]). A strained reading of those cases supports the argument that only the tenant of the illegally converted unit need not pay rent but the other tenants must, in fact, pay rent. The natural reading of those cases supports the tenant's argument that no tenant must pay rent if any unit does not conform to the certificate of occupancy. Moreover, Multiple Dwelling Law §301(1) and §302(1)(a) and (b) states that "no rent shall be recovered" for any "dwelling or structure" that is "occupied in whole or in part" without a certificate that "said dwelling conforms in all respects" to the Multiple Dwelling Law (id). That language further supports the assertion that no rent can be collected, even from units that are legal, if some illegality renders the certificate of occupancy invalid in any respect. Concerning arguments this result is unfair or unjust (Chan v. Kormendi, supra) or can perhaps be manipulated by an unscrupulous tenant of a legal apartment to avoid paying rent by facilitating the existence of an illegal apartment (see, The Barring of rent in the Absence of a Certificate of Occupancy-A Rule Still in Much Need of Clarification, by Nativ Winiarsky, New York Law Journal, September 6, 2023) such arguments must properly be raised to the Legislature (see, Chazon LLC v. Maugenest, 19 NY3d 410, 948 NYS3d 571 [2012]). This court cannot ignore the plain reading of the statutes and cases that have followed such plain readings in favor of cases, however reasonable from policy perspectives, that do not adhere to such plain readings of the statutes. This court is bound to conclude that since the dwelling in this case was a de facto multiple dwelling no tenant was required to pay rent. Therefore, the request for rent is consequently denied. Lastly, any request for attorney fees is denied."

NYC FAIR CHANCE FOR HOUSING ACT

From an email from the firm of Schwartz Sladkus Reich Greenberg Atlas LLP:

"The New York City Council recently enacted Local Law 24 of 2024 – The Fair Chance for Housing Act (the “Act”) - which makes it unlawful for an owner of real estate in New York City to refuse to rent, lease, to withhold approval for a sale or lease or otherwise to deny or withhold a housing accommodation to an individual based upon such individual’s criminal history other than in limited instances described in the Act. The purpose of the Act is to prevent housing discrimination against individuals who were previously convicted of a crime and the individuals who choose to live with them. The Act limits when a property owner may obtain a criminal background search on a prospective purchaser or tenant and what the search may be used for. The Act affects decisions made by cooperative and condominium boards (each of which are considered to be housing providers) and it goes into effect on January 1, 2025.

The Act prohibits a housing provider from conducting a criminal background search (or question an applicant about his or her criminal background) during the initial sale or leasing application process. It is only after the housing provider has completed its application review and made a preliminary decision on the application that the housing provider may conduct a limited scope criminal background search. We suggest that our clients memorialize, in writing, each step of the application review process and that they maintain these written records.

The scope of the permissible background search includes the following (which the Act refers to as “reviewable criminal history”):

• Convictions requiring registration with a sex offense registry

• Felony convictions that are no more than 5 years from the date of the individual’s release from incarceration or sentencing (if there was no incarceration)

• Misdemeanor convictions that are no more than 3 years from the date of the individual’s release from incarceration or sentencing (if there was no incarceration)

In making their decisions regarding housing applications, housing providers may not consider:

• Convictions that have been sealed, expunged or pardoned

• Pending cases

• Matters that have been dismissed

• Felony convictions that are more than 5 years from the date of the individual’s release from incarceration or sentencing (if there was no incarceration)

• Misdemeanor convictions that are more than 3 years from the date of the individual’s release from incarceration or sentencing (if there was no incarceration)

When ordering a criminal background search, in connection with an application for housing, the housing provider must take reasonable measures to ensure that the search is conducted in a manner consistent with the requirements of the Act. Any such order should be made in writing and direct that the search be performed in accordance with the Act.

A housing provider must provide the applicant with a copy of any criminal background search that it has relied upon for making an adverse decision on an application, and must allow the applicant at least five (5) days to review the search, identify any errors in it, or provide mitigating information.

If after providing the applicant with the information required by the Act and reviewing any related information provided by the applicant, the housing provider still wishes to deny the application, the housing provider must provide the applicant with a written statement specifying the documents that the housing provider relied upon in order to make its decision and an explanation as to how the decision advances a “legitimate business interest” of the housing provider.

It is important to note that the Act does not prohibit a housing provider from searching (or having searched) any sexual offense registry or considering convictions, of any vintage, for crimes against persons or property on the premises of the housing accommodation or acts that would adversely affect the health, safety of residents of the property."

A LEASE BREACH DOES NOT PER SE RISE TO LEVEL OF NUISANCE

LEXINGTON AVE. LP v. Clement, 2024 NY Slip Op 50987 - Kings Co. Civil Court 2024:

"This is a holdover proceeding commenced against Dara Clement ("respondent"), a rent stabilized tenant and recipient of a Section 8 Housing Choice Voucher Program subsidy. The notice to cure served upon respondent states, "[Y]ou are permitting and/or committing a nuisance in the subject premises, or by reason of gross negligence, substantially damaging the accommodation, or your conduct is such as to interfere substantially with the comforts and safety of other tenants[.]" The notice to cure explicates that respondent has created a nuisance and breached her lease by failing to provide "proper access" to the premises and "[on] several occasions including January 16, 2023" allowing access to the premises for petitioner to abate Housing Quality Standards ("HQS") violations purportedly placed by the New York State Department of Homes and Community Renewal ("DHCR"), the administrator of respondent's Section 8 voucher, and the Department of Housing and Preservation and Development ("HPD"), but then demanding the workers leave.^[1] Petitioner alleges that on January 30, 2023, respondent was verbally abusive to its workers, causing them to leave the apartment. (NYSCEF Doc No. 1, at 20, notice to cure ¶ [a].) Petitioner further avers that respondent has installed a washing machine in violation of her lease, which has caused flooding in her apartment and damaged her kitchen cabinets. (Id. ¶ [b].) The notice to cure directed respondent to correct the alleged conditions by March 13, 2023. (Id., at 20.)

Respondent was subsequently served with a notice of termination, dated March 30, 2023, requiring her to vacate the premises by April 30, 2023, or face an eviction proceeding. The notice of termination adds a paragraph (c), in which petitioner states that it has received violations from HPD "due to the fact that you did dismantle, remove and dispose of the landlord's cabinetry and sink," and, "You disposed of and destroyed the landlord's property without the landlord's prior written permission or consent." Further, petitioner alleges respondent has "damage[ed] the [kitchen] countertops and cabinets by applying chemicals to the surface," thereby stripping them of their original color. (NYSCEF Doc No. 1 at 4-6, notice of termination.) Petitioner alleges, "Damage and destruction of the property is non-curable." (Id., at 5.) The notice of termination states: "The landlord has requested access after the Notice to Cure expired on March 13, 20023 (sic)," and "You failed to remove the washing machine at (sic) the Notice to Cure expired on March 13, 2023." (Id., at 4.)

Respondent retained counsel and filed both an answer and a demand for a bill of particulars on April 15, 2024. (NYSCEF Doc No. 9, answer; NYSCEF Doc No. 10, demand for bill of particulars.) Petitioner responded to the demand on June 11, 2024. (NYSCEF Doc No. 22, bill of particulars.)

Now before the court is respondent's motion to dismiss the proceeding pursuant to CPLR 3211 (a) (7) on two bases. First, respondent argues that the notices fail to state a cause of action sounding in nuisance behavior. (NYSCEF Doc No. 13, notice of motion [sequence 2].) Respondent argues petitioner nowhere pleads facts that suggest her behavior is not curable and fails to set forth the elements of a cause of action premised on nuisance, to wit, that petitioner has failed to allege a "continuous invasion of rights—a pattern of continuity or recurrence of objectionable conduct," and that petitioner has failed to plead that respondent's actions have affected the health, safety, or comfort of other residents. (NYSCEF Doc No. 14, respondent's attorney's affirmation ¶¶ 25-26 et seq. [internal quotation marks omitted].) Second, citing to 31-67 Astoria Corp. v Landaira, 54 Misc 3d 131(A), 2017 NY Slip Op 50034(U) (App Term, 2d Dept 2017), respondent argues the notice of termination is inadequate because it does not provide specific details to demonstrate that respondent failed to cure her alleged conduct by the deadline set forth in the notice to cure, or any time prior to the service of the notice of termination. (Id., ¶¶ 19-24.)

The court subsequently converted the motion to dismiss to a motion for summary judgment on notice to the parties. Neither party submitted additional papers. (NYSCEF Doc No. 21, decision and order dated May 23, 2024.)

DISCUSSION

A court may employ the drastic remedy of summary judgment only where there is no doubt as to the absence of triable issues. (Andre v Pomeroy, 35 NY2d 361, 364 [1974].) On such a motion, a court's function is to find, rather than to decide, issues of fact. (Southbridge Towers, Inc. v Renda, 21 Misc 3d 1138 [A], 2008 NY Slip Op 52418 [U] [Civ Ct, NY County 2008], citing Epstein v Scally, 99 AD2d 713 [1st Dept 1984].) Only upon a prima facie showing of entitlement to summary judgment, does the burden shift to the non-moving party to establish material issues of fact requiring a trial. (Vega v Restani Const. Corp., 18 NY3d 499, 503 [2012] [internal citations and quotation marks omitted].) "On a motion for summary judgment premised on failure to state a cause of action, the court must consider evidentiary material in addition to the pleadings in order to determine whether the plaintiff actually has a cause of action (internal quotation marks and citations omitted)." (72 Poplar Townhouse, LLC v Bd. of Managers of 72 Poplar St. Condo., 224 AD3d 645, 646 (App Div, 2d Dept 2024.) "An unfounded reluctance to employ the remedy of summary judgment only serves to swell the trial calendar and to deny other litigants the right to have their claims properly adjudicated." (Andre v Pomeroy at 364.)

In the case of rent stabilized tenancies, what constitutes a properly pleaded cause of action is informed and amplified by the statutory requirements. "Every notice to a tenant to vacate or surrender possession of a housing accommodation shall state the ground . . . upon which the owner relies for removal or eviction of the tenant, [and] the facts necessary to establish the existence of such ground." (Rent Stabilization Code [9 NYCRR] § 2524.2 [b] [emphasis added].) "(T)he appropriate standard for assessment of the adequacy of notice is one of reasonableness in view of all attendant circumstances." (Oxford Towers Co., LLC v Leites, 41 AD3d 144 [1st Dept 2007]; Hughes v Lenox Hill Hospital, 226 AD2d 4 [1st Dept 1996].)

Respondent's Alleged Actions Do Not Rise to the Level of Nuisance Behavior

At the outset, the court finds that petitioner's claims do not sound in incurable nuisance behavior. Courts have defined a nuisance as a "continuous invasion of rights—a pattern of continuity or recurrence of objectionable conduct (internal citations omitted)." (Domen Holding Co. v Aranovich, 1 NY3d 117 [2003], citing Frank v Park Summit Realty Corp, 175 AD2d 33, 34 [1st Dept 1991].) Generally, because the behavior is deemed so substantial and persistent as to be incapable of remediation, no opportunity to cure is required. By contrast, a holdover premised upon curable violations of an alleged breach of a substantial obligation of a rent stabilized tenancy requires a predicate notice to cure, Rent Stabilization Code ("RSC") (9 NYCRR) § 2524.3 (a), and a post-judgment opportunity to cure pursuant to RPAPL 753 (4).^[2]

With regard to the allegation that respondent has installed a washing machine which has flooded her apartment, there is no allegation that respondent's installation of a washing machine has adversely affected other tenants. In addition to a pattern of continuity or recurrence of objectionable conduct, the tenant's conduct must be deleterious to other residents. (RSC § 2524.3 [b]; Sumet I Assocs., LP v Irizarry, 103 AD3d 653, 654 [2d Dept 2013] [landlord failed to demonstrate that the criminal activity of vandalizing walls in common area "threatened the health, safety, or right to peaceful enjoyment of the premises by other residents."]; Roxborough Apts. Corp. v Kalish, 22 Misc 3d 130 [A], 2009 NY Slip Op 50127[U] [App Term, 1st Dept 2009] ["In the absence of any claim or showing that tenant's alleged [conduct] in any way affected other building residents, landlord failed to state an actionable claim for nuisance (internal citation omitted)."]) In Nestor v McDowell, 81 NY2d 410, 413 (1993), the lower court and the Appellate Division held that the installation of a washing machine in violation of the lease amounted to curable conduct under RPAPL 753 (4). The Court of Appeals affirmed that ruling and held that the cure period prescribed by RPAPL 753 (4) applies to ejectment actions as well as to summary proceedings.

With regard to petitioner's allegations that respondent has repeatedly failed to provide proper access, petitioner cites to two specific occasions, January 16, 2024, and January 20, 2024 — and otherwise, ambiguously, on "several occasions" — on which respondent failed to provide "proper access." RSC § 2524.3 (e) contemplates access for repairs and inspection, and requires proper notice for same, to wit, "If the notice of inspection or showing is served by mail, then the tenant shall be allowed five additional days to comply, for a total of 10 days because of service by mail, before such tenant's refusal to allow the owner access shall become a ground for removal or eviction." (Id.)

With regard to paragraph (c) of the notice of termination which asserts additional allegations of allegedly incurable behavior — to wit, removing kitchen cabinets, without prior permission, and damaging the countertops and cabinets by "applying chemicals to the surface" — these alleged actions sound more appropriately in a cause of action for unlawful alterations which may be subject to the cure period under RPAPL 753 (4), rather than incurable damage. (See Grove Equities LLC v Butensky, 61 Misc 3d 130 [A], 2018 NY Slip Op 51409 [U] [App Term, 1st Dept 2018] [holding court did not err in allowing tenant to cure "replacement of kitchen cabinets, construction of a Murphy bed, and installation of a satellite dish"], citing 201 W. 54th St. Buyer LLC v Rodin, 44 Misc 3d 1217 [A], 2014 NY Slip Op 51167 [U] ["Clearly, [r]espondent can cure the removal of the sink, sink cabinet and toilet by replacement of these items with the same or similar fixtures."],^[3] affd 47 Misc 3d 154 [A], 2015 NY Slip Op 50863[U] [App Term, 1st Dept 2015]; Benjamin Scott Corp. v. Lydia, 14 Misc 3d 1237 [A] [Civ Ct, New York County 2007], affd 23 Misc 3d 128 [A], 2009 NY Slip Op 50597 [U] [App Term, 1st Dept 2009] [alterations to "floors, closets, bathroom door, and kitchen cabinets" curable]; Britton v. Yazicioglu, 189 AD2d 734 [1st Dept 1993] ["removal and replacement of []cabinets" curable].)

Notices to Terminate a Rent Stabilized Tenancy — RSC § 2524.2 (b)^[4]

A notice to terminate a rent stabilized tenancy must contain sufficiently particularized facts to support its action, not just bare legal conclusions, in order to serve as a predicate for a summary eviction proceeding. (London Terrace Gardens, L.P. v Heller, 40 Misc 3d 135[A], 2009 NY Slip Op 52858[U], *1 [App Term, 1st Dept 2009]; Berkeley Assocs. Co. v Camlakides, 173 AD2d 193 [1st Dept 1991].) The remedial purpose of a notice of termination is to curtail baseless litigation. An impermissibly vague predicate notice "eviscerate[s] the plain language of [RSC 2524.2 (b)] and undermine[s] its salutary purpose to discourage baseless eviction claims founded upon speculation and surmise, rather than concrete facts." (Id., *1.) Moreover, it is well settled that a predicate notice is not a pleading and cannot be retroactively amended. (Chinatown Apts. v Chu Cho Lam [51 NY2d 786 (1994]; Singh v Ramirez, 20 Misc 3d 142 [A], 2008 NY Slip Op 51680 [U] [App Term, 2d Dept 2008], citing Chu Cho Lam, supra] ["It is elementary that the predicate notice cannot be amended[.]") While "a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint (emphasis added)," Leon v Martinez at 88, a predicate notice of termination cannot be remedied by a bill of particulars or by a post-hoc submission of an affidavit from petitioner or its agents. (See 2704 Univ. Ave. Realty Corp. v Thompson, 63 Misc 3d 1222 [A], 2019 NY Slip Op 50652 [U], *4; see also Fed. v Ortiz, 139 Misc 2d 274, 276 [Civ Ct, Kings County 1988] [holding that a defective notice of termination "cannot be cured by a recitation in a party's papers in opposition to a motion to dismiss."])^[5]

31-67 Astoria Corp. v Landaira, 54 Misc 3d 131 (A), 2017 NY Slip Op 50034 (U)

In 31-67 Astoria Corp. v Landaira, 54 Misc 3d 131(A), 2017 NY Slip Op 50034(U) (App Term, 2nd Dept 2017), the Appellate Term, Second Department dismissed, a failure to provide access holdover proceeding on the basis that the notice of termination, served one day after the cure period expired, averred in conclusory fashion that the tenant had not cured the violation. The notice of termination served in the Landaira proceeding stated that the tenant had "failed to cure such violation after written notice by the owner that the violations cease within [ten] days." (31-67 Astoria Corp. v Landaira, Civ Ct, Queens County, Apr. 17, 2015, Lansden, J., index No. LT-069408-14.)

In affirming the Housing Court decision, the Appellate Term in Landaira cited to Hew-Burg v Mocerino, 163 Misc 2d 639 (Civ Ct, Kings County 1994), for the proposition that, when behavior is curable, failure to allege that the defaults specified in the notice to cure have been cured during the cure period renders the notice of termination fatally defective. In Hew-Berg, the court rejected petitioner's argument therein that "[t]here is no requirement that new misconduct be alleged. It is sufficient that the misconduct was not cured prior to the service of a Notice to Terminate (internal quotation marks omitted)." (Hew-Burg, 163 Misc 2d at 640.) The allegations in Hew-Berg were "serious and in some instances specific, including: on numerous occasions that respondent physically attacked and assaulted other tenants[.]" (Id. at 640.) Even so, the court held that merely stating in the notice of termination that the tenancy was terminated for "the reasons set forth in the notice to cure," id., rendered the notice of termination defective "for lack of factual allegations that the course of conduct complained of continued beyond the cure period (emphasis added)." (Id. at 641.) Landaira and Hew-Berg are extensively cited in favor of dismissal of a petition in the Second Judicial Department.^[6]

In the case of a summary holdover proceeding premised upon the tenant's breach of a substantial obligation of the tenancy, the tenant must have, in fact, failed to cure prior to the service of a notice of termination for failure to cure. In the case of a summary holdover proceeding commenced for failure to provide access, while there is no bright-line rule requiring a predicate notice to include dates and times when the tenant failed to provide access, courts have found predicate notices that do not comprise dates and times to be defective, especially in cases where dates are readily accessible by petitioner. In Kings Thorn LLC v Walters, 64 Misc 3d 1212 (A), 2019 NY Slip Op 51125(U) (Civ Court, Bronx County 2019), upon reargument the court found that it had erred in upholding a landlord's notice of termination in a holdover proceeding premised upon the tenant's failure to provide access to make necessary repairs. Citing to Oxford Towers v Leites, supra, the court opined that where "information is readily accessible to [a] [p]etitioner [] its omission from the predicate notice [] is unreasonable." (Walters, 2019 NY Slip Op 51125[U], *4.) Indeed, the Housing Court decision in Landaira — which was affirmed on appeal and is publicly available from the Housing Court file archives — stated that after the expiration of the notice to cure, "The termination notice makes no mention of whether or not communication to arrange access occurred." (31-67 Astoria Corp. v Landaira, Civ Ct, Queens County, Apr. 17, 2015, Lansden, J., index No. LT-069408-14.)

In 1123 Realty LLC v Treanor, 62 Misc 3d 326, 2018 NY Slip Op 28314 (Civ Ct, Kings County 2018), the court held, "Here, the notice of termination is bereft of specific dates and times when access was allegedly sought by petitioner.... [T]he notice of termination . . . fails to state whether an inspection appointment was agreed to and, if so, whether respondent failed to provide access on the agreed-upon date." (Treanor, 2018 NY Slip Op 28314, *7.) In Concourse Green Associates, LP v Patterson, 53 Misc 3d 1206(A), 2016 NY Slip Op 51451(U) (Civ Ct, Bronx County 2016), the court opined that "While there is no bright line rule mandating the inclusion of names, dates and specific instances of misconduct in the predicate termination notice, they may be required if the failure to include them would be unreasonable in light of all the attendant circumstances (internal citations omitted)." (Patterson, 2016 NY Slip Op 51451[U], *5.) In 297 Lenox Realty Co. v Babel, 19 Misc 3d 1145(A), 2008 NY Slip Op 51168(U) (Civ Ct, Kings County 2008), the court held that a predicate notice deficient of dates and times was defective where the conduct "should be readily identified by date and time." (Babel, 2008 NY Slip Op 51168[U], *3.) (Applying the standard of specificity for predicate notices required by the RSC, the controlling caselaw militates in favor of dismissal under the facts and circumstances of this case.

CONCLUSION

As set forth above, this proceeding is properly viewed as one premised upon RSC § 2524.3 (a) (breach of lease/substantial obligation of tenancy), RSC § 2524.3 (e) (failure to provide access), and curable alterations. A proceeding based on these grounds requires that a specific notice to cure be provided to enable respondent to cure the breach, as well as a post-judgment opportunity to cure. (RPAPL 753 [4].) Erroneously identifying as a nuisance what is actually a breach of lease or breach of substantial obligation of a tenant's leasehold deprives a tenant of the significant opportunity to cure a breach, conferred by statute, and to avoid the loss of their home. (See Thompson v 490 W. End Apartments Corp., 252 AD2d 430, 437 [1st Dept 1998] [finding that a proprietary lessee had been denied their statutory right pursuant to RPAPL 753 (4) to cure a breach]; Butensky, 2018 NY Slip Op 51409 [U], *1 ["RPAPL 753 [4] must be `liberally construed to spread its beneficial effects as widely as possible' (Post v 120 E. End Ave. Corp., 62 NY2d 19, 24 [1984].") "[I]n light of the guiding principle that equity abhors a forfeiture," Thompson, 252 AD2d at 437, the difference between these two types of proceedings is not to be lightly analyzed.^[7] A conclusory allegation that a condition or behavior "is not curable" is inadequate to provide sufficient detail regarding the irredeemable nature of the alleged violation, or to explicate how the landlord determined that a cure was not effectuated such as to terminate a rent stabilized tenancy.

Petitioner's argument that it is acceptable under the circumstances to simply state, "The landlord has requested access after the Notice to Cure expired on March 13, [2023]" and "You failed to remove the washing machine at (sic) the Notice to Cure expired on March 13, 2023," is unpersuasive. Grammatically this statement does not differ from merely alleging, as did the landlord in the Landaira proceeding, that the tenant "failed to cure such violation after written notice by the owner that the violations cease within ten days," — 31-67 Astoria Corp. v Landaira, Civ Ct, Queens County, Apr. 17, 2015, Lansden, J., index No. LT-069408-14 — and could just as easily state that respondent "failed to cure [the failure to provide access, the damage to the cabinets, i.e. `such violation']...." No additional details are provided in the notice of termination. Indeed, the bill of particulars shows only communications between petitioner and its attorney prior to or during the cure period, or after the expiration of the notice of termination. The emails attached to petitioner's bill of particulars do not indicate that further access was sought. (NYSCEF Doc No. 22, bill of particulars.) Finally, to state simply that "you have failed to remove the washing machine," does not demonstrate any efforts to determine if this is true, or just presumed. In sum, the allegations that respondent has not cured the violations alleged in the notice to cure are unparticularized conclusions which do not comprise fact specific details, as required, supporting the existence of the basis for termination of respondent's rent stabilized tenancy. (31-67 Astoria Corp. v Landaira, 54 Misc 3d 131 [A], 2017 NY Slip Op 50034[U] [App Term, 2nd Dept 2017].)

Accordingly, it is hereby ORDERED that respondent's motion to dismiss is GRANTED. The Petition is dismissed.

This constitutes the Decision and Order of this Court.

[1] According to petitioner, respondent's subsidy has been suspended due to HQS violations which have not been remediated due to respondent's conduct, and petitioner has, in turn, incurred significant expenses.

[2] RPAPL 753 (4) states: "In the event that such proceeding is based upon a claim that the tenant or lessee has breached a provision of the lease, the court shall grant a thirty day stay of issuance of the warrant, during which time the respondent may correct such breach."

[3] The trial court also notes that walls could be replaced with the help of a licensed professional "within the ten days allotted by RPAPL 753 (4)." That the time to remedy a breach post-trial has been enlarged by the HSTPA to three times the amount of time provided by the former RPAPL 753 (4) is not an insignificant benefit.

[4] "Every 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 establish the existence of such ground, and the date when the tenant is required to surrender possession." Id.

[5] To the extent that the notice of termination alleges additional breaches not recited in the notice to cure, the notice is defective and these allegations will not be considered. See Webster Bldg A LLC v. Mitchner, NYLJ, Aug. 1, 2018 at 31, 2018 NYLJ LEXIS 2623.

[6] Rochdale Vill., Inc v Hallerdin-Grant, —NYS3d —, 2024 NY Slip Op. 24192 (Civ Ct, Queens County 2024); Columbia Leasing, LP v Williams, 80 Misc 3d 884, 2023 NY Slip Op 23206 (Civ Ct, Queens County 2023); 2186 Realty NY LLC v Martinez, 2022 NY Slip Op 31054(U) (Civ Ct, New York County 2022) (failure to remove illegal partition); 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 50442(U) (Civ Ct, Queens County 2019) (failure to remove illegal alterations); BEC Continuum Owners v Taylor, NYLJ, May 30, 2018 at 33, 2018 NYLJ LEXIS 1821, *1 (Civ Ct, Kings County 2018); Ciampa Bell, LLC v Han, NYLJ XXXXXXXXXXXXX, *1 (Civ Ct, Queens County 2017); Fontana LLC v Martinez-Bautista, NYLJ, Feb. 14, 2018 at 29, 2018 NYLJ LEXIS 366 (Civ Ct, Queens County 2018) (failure to inter alia provide access); H&N Equities LLC v Sanchez, NYLJ XXXXXXXXXXXXX, *1 (Civ Ct, Queens County 2017); Third Hous. Co. v Velez, NYLJ XXXXXXXXXXXXX, *1 (Civ Ct, Queens County 2017); Volunteers of Am. v Johnson, NYLJ XXXXXXXXXXXXX, *1 (Civ Ct, Kings County 2017) (failure to inter alia provide access); 1025-45 Assocs. v Tate, NYLJ XXXXXXXXXXXXX, *1 (Civ Ct, Kings County 2017) (dismissing a holdover petition where the notice of termination failed to specify whether an investigation had occurred after the expiration of the cure period to ascertain if cure of illegal alteration had occurred.)

[7] "The distinction between [a nuisance and a breach of lease] proceeding[] is primarily whether the condition alleged is chronic and, thus, considered incapable of a cure, or is the condition curable and, therefore, the type of conduct that falls within the confines of the terms of a lease that provides for a notice to cure to be served upon a tenant if and when such behavior is alleged. A corollary benefit that inures to a tenant when conduct is determined to be a breach of lease or violation of a substantial obligation of tenancy is that the tenant will be afforded a post[-]judgment cure period pursuant to RPAPL 753 (4) if and when a judgment is entered on the violation of the lease." Unicorn 151 Corp. v. Small, 181 Misc 2d 304, 1999 NY Slip Op 99335 (Civ Ct, Kings County 1999)."