NYLJ618202457150Lambert

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June 14, 2024

the alleged default, and the governing law, that is, the

clause of the lease allegedly violated. Because the

notice failed to specify the offending facts and the

governing lease clauses, it failed to put the tenant in

a position to cure.

Between 1980 and 2005, Chinatown was cited as

controlling precedent in numerous cases. The first

appearance of the phrase “the conduct required to

prevent eviction” in the context of a notice of default

litigation seems to be the 2005 case 200 West 58th

Street LLC v. Little Egypt Corp., 7 Misc.3d 1017(A),

801 N.Y.S.2d 243 (Civ. Ct. N.Y. Co. 2005).

In Little Egypt, the notice of default alleged that

the tenant, the operator of a retail store, was sell-

ing merchandise in competition with other tenants

at substantially lower prices. However, the notice

did not identify the other tenants or the offending

merchandise.

The court found that based on the notice the tenant

“knows neither what the competing merchandise is,

nor whether to cease selling the offending merchan-

dise or sell it at a raised price to avoid eviction.”

Because the notice failed to specifically describe

the facts alleged to constitute the default, it failed the

Chinatown test. Citing Chinatown, the Court stated

“[t]he notice to cure must inform the tenant unequivo-

cally and unambiguously how it has violated the

lease and the conduct required to prevent eviction.”

[emphasis added].

The phrase “the conduct required to prevent evic-

tion” might seem to indicate that the Court found the

notice to be defective because it did not instruct the

tenant on “what to do,” which goes further than the

controlling precedent of Chinatown.

However, the facts of Little Egypt belie that conclu-

sion. The notice was defective because it “fail[ed] to

identify the co-tenants or the merchandise respon-

dent sold that competed with those tenants.” The

notice asserted that the tenant was blocking access

to “other stores” but failed to identify those stores.

Without allegation of those facts, the tenant was not

placed in a position to cure.

The court went on to state “[T]hese omit-

ted but necessary facts are key to determining

the reasonableness of the notice under the

circumstances.” [emphasis added].

While the Decision states that the tenant “knows

neither … whether to cease selling…or sell it at a

raised price…,” the problem with the notice was not

that it failed to instruct the tenant which of those two

courses of action to follow. Either would have worked.

The problem with the notice, rather, was the “omitted

but necessary facts… .” Without the specification of

the offending facts, the tenant was not placed in a

position to cure, by a means of its choosing.

In characterizing the defect as the failure to

apprise the tenant of “conduct required to cure,”

the court was really explaining the reason for the

rule that the facts comprising the default must be

described in the notice.

Four years after Little Egypt, the phrase appeared

in a 2009 case decided by the Appellate Division,

Second Department. Westhampton Cabins & Cabanas

Owners Corp. v. Westhampton Bath & Tennis Club

Owners Corp., 62 A.D.3d 987, 882 N.Y.S.2d 124 (2d

Dept. 2009). Westhampton was a case in which there

could be no confusion about “the conduct required

to prevent eviction”, because it concerned an alleged

default in the payment of rent. There is only one

possible way to cure such a default—payment.

The Second Department sustained the notice of

default, finding that it specified the applicable lease

clauses and the amounts of unpaid rent, and pro-

vided the date by which said amount could be paid by

the tenant to avoid termination.

Nevertheless, in describing the test for suf-

ficiency of a notice of default, the court stated,

mirroring the language of Little Egypt, that a notice

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