Prana Growth Fund I, L.P. v. Lazada

OPINION OF THE COURT

Barbara R. Kapnick, J.

Plaintiffs complaint seeks a judgment of possession based on plaintiffs contention that defendant’s tenancy is in violation of the certificate of occupancy and cannot be legalized.

Defendant contends that the apartment in which he has lived with his family since 1989 is located in a building consisting of more than five dwelling units and is thus protected by Rent Stabilization Law of 1969 (Administrative Code of City of NY) § 26-501 et seq. and Rent Stabilization Code (9 NYCRR) § 2520.1 et seq.

Defendant now moves for. an order dismissing the complaint on the grounds that: (i) this court lacks subject matter jurisdiction because defendant was never served with a predicate notice, as required by Rent Stabilization Code (9 NYCRR) §§ 2524.2 and 2524.3 (c) (see also, Domen Holding Co. v Aranovich, 1 NY3d 117 [2003]; Weiden v 926 Park Ave. Corp., 154 AD2d 308 [1st Dept 1989]), and (ii) the complaint fails to state a cause of action.

There is no dispute that plaintiff executed a “Renewal Lease Form” dated September 5, 2003 extending defendant’s rent-stabilized tenancy for two years — through January 31, 2006. Plaintiff, however, now contends that the apartment is not a legal dwelling and thus is not subject to the Rent Stabilization Law.

Plaintiff further argues that there is no requirement under the Real Property Actions and Proceedings Law that a notice of termination be served prior to the commencement of an action for ejectment.

It is well-settled law in the Second Department that “when there is a valid landlord-tenant relationship, a predicate notice must be served on the defendant before commencement of an ejectment action.” (Ricciardo v Ricciardo, 6 Misc 3d 223, 225 [Civ Ct, Kings County 2004] [citations omitted]; see also, Commercial Hotel v White, 194 Misc 2d 26 [App Term, 2d Dept 2002]; Gerolemou v Soliz, 184 Misc 2d 579 [App Term, 2d Dept 2000]; Kaur v Sobhey, 5 Misc 3d 1012[A], 2004 NY Slip Op 51341[U] [Civ Ct, Kings County 2004].) In the absence of the giving of such notice, an ejectment action will not lie. (Gerolemou v Soliz, supra.)

Plaintiff argues, however, that no similar rule has been applied in this department, and cites the Appellate Division, First Department’s decision in East 82 v O’Gormley (295 AD2d 173 [1st Dept 2002]) for the proposition that a predicate notice need not be served in an ejectment action.

Although the Appellate Division, First Department, declined to dismiss that action for lack of a predicate notice, the Court specifically made its determination “[u]nder the circumstances” of that case which included “a ‘foiled’ nonpayment summary proceeding, ‘a surfeit of notice’ and apparently incontrovertible evidence that the space [could not] be legalized.” (East 82 v O’Gormley, supra at 174.)

Here, there was neither a prior proceeding nor any prior notice.¹ Moreover, plaintiff has offered no evidence in support of its claim that this space cannot be legalized. Therefore, the Appellate Division, First Department’s reasoning in East 82 v O’Gormley (supra) would appear not to apply to the facts of this case.²

Accordingly, based on the papers submitted and the oral argument held on the record on February 9, 2005, this court finds that the landlord was required to serve a predicate notice upon the tenant prior to the commencement of this action. (Domen Holding Co. v Aranovich, supra.)

Defendant’s motion is, therefore, granted.

1 . Defendant indicates that he was “shocked that after so many years of paying rent and signing renewal leases that the landlord now says that [he has] to leave.”

2 . In addition, the Honorable Saralee Evans recently issued a decision in a related ejectment action, Prana Growth Fund I v Ramirez Polanco Antonio (Index No. 112008/04), concerning another apartment in the same building, in which she also distinguished East 82 v O’Gormley (supra), on its facts, noting that “the same ‘surfeit of notice’ [that was present there] cannot be claimed.” She thus granted the tenant’s motion to dismiss that action on the ground that a predicate notice had not been served.