NYLJ618202457150Lambert

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June 14, 2024

In CUCS W.127th St. LLC v. E.E., 80 Misc.3d 995,

193 N.Y.S.3d 909 (Civ. Ct. N.Y. Co. 2023) the notice

alleged that the residential tenant breached the lease

by keeping the apartment in an excessively cluttered

state, resulting (as in the 2150 case) in the NYC

Dept. of Housing Preservation and Development

issuing a violation against the landlord. The tenant

argued that a notice of default “must inform a tenant

of what actions the tenant must take to cure the

alleged breach.”

The landlord argued that a notice of default must

“specify the conduct the tenant needs to correct;

and … inform the tenant of specific lease provisions

that prohibit the alleged conduct.” In other words,

the landlord argued that meeting the elements set

forth by the Court of Appeals in Chinatown was suf-

ficient; and the tenant argued that the notice must

also instruct the tenant on the actions the tenant

needs to take.

The court agreed with the tenant. Citing West-

hampton and Shore Lane, supra., it dismissed the

case, holding that the landlord “was obligated to

state in the notice to cure how respondent was to

cure the alleged breaches of her lease….” Arguably

the CUCS case is limited by its circumstances; the

landlord was a “provider of supportive housing” and

was aware of the tenant’s psychological issues,

and the court held that specific instructions on how

to cure were required to render the notice reason-

able “under the circumstances.”

In our view that was incorrect. Even under those

unusual circumstances, meeting the Chinatown

test is sufficient. Where the notice apprises the

tenant of specific offending facts, the tenant has

been informed of how to cure: get rid of those

specific offending facts. Where there is more than

one possible way to do so, it’s up to the tenant; the

landlord is not entitled to insist upon a particular

method, either by “providing instructions” or

otherwise.

For example, what if the landlord’s notice in CUCS

had instructed the tenant to cure by hiring a specific

cleaning company designated by the landlord and

temporarily vacating her apartment for three days

while the cleaning company does its work? That

would have met the court’s requirement to “state in

the notice to cure how respondent was to cure the

alleged breaches of her lease.” But it would also

have imposed on the tenant an onerous and expen-

sive requirement.

How then to reconcile the simple rule under Chi-

natown and the phrases in later cases “the conduct

required to prevent eviction” and “how the [tenant]

could cure the alleged violations”?

The reconciliation is that the phrase, which first

appeared in Little Egypt and was then perpetuated

in Westhampton and other cases, was not intended

in those cases to be an expansion of the rule in

Chinatown. It is in fact the simple, unexpanded Chi-

natown rule which yielded the result in those cases.

Where the notice sets forth the specific allegedly

offending facts together with the specific provision

of the lease allegedly violated by those facts, then

the self-evident task at hand for the tenant is to

remove the offending facts; how the tenant elects

to do so is up to the tenant.

Thomas C. Lambert and Steven Shackman are

partners at Lambert & Shackman.

prohibited, contact 877-256-2472 or reprints@alm.com. # NYLJ-6182024-57150

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