NYLJ618202457150Lambert
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June 14, 2024
of default must inform the tenant of “the conduct
required to prevent eviction.”
Thereafter, this language was picked up and quoted
in several lower court decisions, each of which cited
Westhampton.
In those cases, there was no issue as to whether
the notice instructed the tenant how to cure. For
example, in Shore Lane Arms Owners Corp. v. Mazza,
26 Misc.3d 1222(A), 907 N.Y.S.2d 441 (Civ. Ct. Kings
Co. 2010), and First Hous. Co., Inc. v. Orozco, 2019
N.Y. Misc. Lexis 4216, 2019 Slip Op. 51224(U)(Civ.
Ct. Queens Co. 2019) the notices alleged that the ten-
ants engaged in prohibited subletting.
In S&M Bronx Inc. v. Mosholu Petrol Realty LLC,
3022 NYLJ Lexis 134 (Sup. Ct. Bx. Co. 2022) the
notice alleged that the tenant had failed to obtain
required insurance.
In BP 510 Madison LLC v. Prosiris Capital Mgt. LLC,
65 Misc. 3d 1222(A), 119 N.Y.S.3d 393 (Civ. Ct. N.Y.
Co. 2019) the notice alleged that the tenant had failed
to pay rent.
In those cases, the tenants did not need instructions
on how to cure, it was self-evident. And yet, in each
of these decisions, the courts cited Westhampton
for the proposition that the notice must apprise the
tenant of “the conduct required to prevent eviction.”
Similarly, in Zagorski v. Koenigsamen, 2019 N.Y.
Misc. Lexis 4087 (Civ. Ct. Kings. Co. 2019) the Court
dismissed a holdover proceeding where the notice
of default was “replete with generalizations”, failed to
“alleg[e] with specificity the conduct of which it com-
plains” and “nowhere designated the provisions of the
lease under which it is being issued.” That is an apt
re-statement of the Court of Appeals’ straightforward
Chinatown test. And yet, citing Westhampton, the Court
went on to state that a notice to cure must inform the
tenant of “the conduct required to prevent eviction.”
This contrast between the straightforward China-
town test and the supposed additional requirement
that the notice “instruct” the tenant how to cure has
come to a head in recent lower court cases.
In 985 Bruckner Blv. Owners LLC v. Fuentes, 2022
N.Y. Misc. Lexis 6195, 2022 NY Slip Op. 51054(U)
(Civ Ct. Bx. Co. 2022), the notice of default con-
tained eight numbered paragraphs specifying
alleged objectionable conduct. The tenant moved to
dismiss on the grounds “that the notice to cure does
not advise what must be done to cure the alleged
breach/conduct.”
The court rejected that argument, holding “A cure
occurs when the specified conduct stops.” It recog-
nized, we would say correctly, that where the notice
specifies the facts constituting the alleged default,
that specification of the facts places the tenant in a
position to cure. See also Riverbay Corp. v. Frere, 2022
N.Y. Misc. Lexis 6195, 2022 NY Slip Op. 51054(U)(Civ
Ct. Bx. Co. 2022) (“A cure occurs when the specified
violations cease.”)
However, in 2150 Creston Ave, LLC v. Marte, 2023
N.Y. Misc. Lexis 2590, 2023 NY Slip Op. 31752(U)
(Civ. Ct. Bx. Co. 2023), the court came to the opposite
conclusion. The notice in that case alleged that the
tenant breached the lease by having built a wall in
a specified area of the apartment, thereby creating
an additional room, resulting in the NYC Dept. of
Housing Preservation and Development issuing a
violation against the landlord.
The tenant moved to dismiss, arguing that the
notice failed to apprise her of “what she must do
to cure the alleged breach.” The landlord argued
that the remedy was “whatever is necessary to cor-
rect the violation.” Citing Westhampton, the court
dismissed the case, holding that a notice to cure
“must be sufficiently specific in stating what the
tenant must do to remedy the alleged breach ….
By not including a specific statement as to what
respondent was required to do … the notice to cure
is unacceptably vague and confusing….”
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