In this summary holdover proceeding, the respondents failed to appear, and the matter proceeded to inquest on February 11, 2013. The inquest was continued on March 5, 2013 for further testimony and the submission of documents, which were admitted into evidence. The basis of the proceeding, as stated in the notice to cure, and referenced in the notice of termination and the verified petition, was the allegation by the petitioner that the respondents failed to provide petitioner access to the premises, on three (3) specified dates and times, which "is a threat to [respondents] and other residents of the subject building."^[FN1]

At the close of the inquest, this court reserved decision. On March 6, 2013, this court dismissed the proceeding and endorsed the court file accordingly. Thereafter, counsel for the petitioner stated that it could not appeal this court's decision as endorsed on the file, and requested a more formal decision from this court for appellate purposes. This court then issued a Decision/Order dated March 6, 2013, indicating that the case was dismissed after inquest, as the court found that the letters/notices to the respondent(s) were insufficient to support the instant proceeding. This court also found that petitioner failed to provide a certificate of eviction for this apartment which is subject to the City Rent Law (rent control, see petition at ¶6). [*2]

Petitioner thereafter moved to "reargue" this courts March 6, 2013 decision, which this court denied as premature, but to address petitioner's post trial/inquest arguments, this court issues the following Amended Decision/Order to expound on this court's prior determination.

Submitted into evidence at the inquest were three (3) letters, addressed only to one (1) named respondent, Mr. Michael Castellani, from petitioner, attempting to schedule access to respondent's apartment.^[FN2] For the reasons stated below, this court finds each letter, legally insufficient.

"On March 27, 2012, April 5, 2012 and April 23, 2012, Ms Gina Stallone physically brought three (3) letters to the Post Office to be mailed Certificate of Mailing for the following address: 3291 Hull Avenue Apt. 55, Bronx, NY 10467."

To demonstrate proper service by mail, the affidavit of service must be sworn to or affirmed under penalties of perjury. It must state that the item claimed to have been served, was enclosed in a properly addressed and first class post-paid, wrapper, which was personally deposited by the affiant in an official depository under the exclusive care and custody of the United States Postal Service within the state" (CPLR §2103[f] [1]).^[FN4]

The affidavit submitted in the case at bar, fails to recite that it is sworn to under penalties of perjury, it fails to state that the affiant personally placed each letter in a first class post paid wrapper and it fails to state that the affiant personally deposited each properly addressed, first class post paid, wrapper, in an official depository under the exclusive care and custody of the United States Postal Service.

The affidavit submitted, merely states that on three (3) separate dates, Ms. Gina Stallone brought three (3) letters to the Post Office to be mailed. The affidavit does not state "I personally deposited ....." Rather the affidavit reads in the third person, and not the first person. The affidavit does not state that the letters were placed in an official depository under the exclusive care and custody of the United States Postal Service, rather it states that the "letters [were] to be mailed" (emphasis added). Additionally, the affiant does not state that she personally placed each "scheduling letter" into each wrapper, nor does she state how she knows that the letters were actually in the wrappers that were "to be" mailed. There is no statement that the wrappers [*3]were mailed by first class mail.

Accordingly, a fair interpretation of the statements contained in said affidavit, is that, an individual other than the individual that signed the affidavit, brought three (3) letters to the post office on three (3) different dates "to be" mailed, but did not personally place the items, which may or may not: have been the scheduling letters; or enclosed in a sealed wrapper; or stamped with first class postage paid; or placed in an official depository under the exclusive care and custody of the United States Postal Service. As the allegations fail to demonstrate proper service by first class post, there is no presumption of receipt.^[FN5] Additionally, petitioner did not offer any proof that respondent signed any official document acknowledging receipt.^[FN6]

Based upon the foregoing, the petitioner failed to prove that the "scheduling letters" were actually mailed to, or received by the respondent.

The first letter dated March 27, 2012, informs respondent, Mr. Castellani that the petitioner has scheduled an access date of April 4, 2012, between 9:00 o'clock in the morning and 5:00 o'clock in the afternoon. The letter further advises Mr. Castellani that: "[a]s per your lease agreement Management is exercising the right to inspect your apartment with reasonable notice." The letter further requests that someone be in the apartment to provide the scheduled access, and the letter thanks Mr. Castellani in advance for his anticipated cooperation to the request. The bottom center of the letter reads in bold and all caps "via certificate of mailing."

The second letter dated April 5, 2012, informs Mr. Castellani that the petitioner has scheduled an access date of April 13, 2012, between 9:00 o'clock in the morning and 5:00 o'clock in the afternoon. Similar to the first letter, the second letter also advises Mr. Castellani that: "[a]s per your lease agreement Management is exercising the right to inspect your apartment with reasonable notice." The letter also requests that someone be in the apartment to provide the scheduled access, and thanks Mr. Castellani in advance for his anticipated cooperation to the request. The bottom center of the letter reads in bold and all caps "via certificate of mailing."

The third letter dated April 23, 2012, informs Mr. Castellani that the petitioner has scheduled an access date of April 30, 2012, between 9:00 o'clock in the morning and 5:00 o'clock in the afternoon. Similar to the first and second letters, the third letter also advises Mr. Castellani that: "[a]s per your lease agreement Management is exercising the right to inspect your apartment with reasonable notice." The letter also requests that someone be in the apartment to provide the scheduled access, and thanks Mr. Castellani in advance for his anticipated cooperation to the request. The bottom center of the letter reads in bold and all caps "via certificate of mailing."

As stated above, the letters requesting access, state that access to Mr. Castellani's apartment, was requested "[a]s per your lease..." There is no citation in the letters to a specific paragraph of the lease which authorizes the petitioner to arrange such access. There was no lease offered into evidence at inquest. Indeed, at oral argument of the petitioner's re-argument motion, counsel for the petitioner conceded there was no lease for the subject rent controlled apartment. As such, petitioner failed to demonstrate that the scheduling letters properly apprised respondent of petitioner's authority to require access "as per [respondent's] lease."

As it was conceded that no lease exists, there could not be a lease which authorized petitioner to arrange such access, making the statement, "[a]s per your lease agreement Management is exercising the right to inspect your apartment..." wholly erroneous, and as a result each "scheduling letter" cannot support the allegations in the notice to cure, upon which the notice to terminate relies, and upon which the petition is based^[FN7].

As noted, each of the three (3) "scheduling letters" state that the access is being scheduled by petitioner to inspect respondent's apartment, "[a]s per your lease agreement." There is no other statement in any of the "scheduling letters" as to the reason access is being sought, except in accordance with the respondent's (nonexistent) "lease." It having been established that no lease exists, and there being no alternative basis for the need for access (such as the need for emergency or required repairs, complaints made against the apartment or a prospective purchaser sought to view the apartment^[FN8]) the "scheduling letters"are facially insufficient.^[FN9]

At the inquest, the court took judicial notice of the court file which contained a copy of the notice to cure, dated June 27, 2012. The affidavit of service of the notice to cure, affirmed under penalties of perjury, reads as follows: "[o]n June 28, 2012, I served the within Ten (10) Day Notice to Cure (sic) on the party (sic) whose name and address is listed below [names and address of the subject premises omitted] By (sic) depositing a true copy of same enclosed in a postpaid properly addressed wrapper in an official mail box under the exclusive care and custody of the United States Post Office within New York State."

As the allegations fail to demonstrate proper service by first class post, there is no [*5]presumption of receipt. Additionally, petitioner did not offer any proof that respondent signed any official document acknowledging receipt^[FN10]. Accordingly, petitioner failed to demonstrate proper service of the notice to cure.

The notice to cure fails to state any facts to support that access was required to the respondent's apartment. To support the case at bar, it was required for the notice to cure to specify the dates and times of each alleged failure to provide access and the reason for petitioner's need for access to inspect the premises.^[FN11]

The notice to cure, in the case at bar, informs the respondent that no access was provided on three (3) specifically stated access dates and times, and informs the reader that such failure to provide access "is a threat to [respondents] and other residents of the subject building." The notice fails to state exactly how the failure to provide access "is a threat to [respondents] and other residents of the subject building." The notice cites to the law, that petitioner claims that the respondent violated in failing to provide access, and makes no mention of a "lease agreement [upon which] Management exercis[ed its] right [to schedule such access]. The facts alleged in the notice to cure are insufficient to establish the grounds for eviction, and "[t]he factual insufficiency of the notice to cure renders the holdover petition jurisdictionally defective..."^[FN12]

As the notice to cure fails to allege sufficient facts to support that the respondent's failure to provide access "is a threat to [respondents] and other residents of the subject building" the notice is facially insufficient.

The notice to cure states that the respondent is "hereby required to cure the aforementioned violations by providing access to the Landlord's agents by ...[date]... that being at least ten (10) days ...[following service of this notice]."

Additionally, the notice to cure advises the reader "that any response to this Notice (sic) shall be sent and directed to the below named attorneys for the Landlord."

As stated in the notice to cure, the "below named attorneys for the Landlord" which respondent was instructed to direct "any response" to the notice to cure, are: "Heiberger & Associates, P.C. (caps omitted) Attorneys for Landlord [address and phone number] Attn: Jamie Heiberger [Esq.]" (emphasis in original).

The notice to cure specifically advised the respondent to communicate only with the "below named attorneys for the Landlord" to properly respond to the notice to cure. In fact, the respondent was not directed to the law firm generally, rather, the notice specifically requires that [*6]all communications in response to the notice to cure to be directed to the attention only one attorney, identified by name, to wit: Ms. Jamie Heiberger.

At the inquest, the petitioner failed to offer sworn testimony by any one from the law firm of the "below named attorneys" that respondent was required to contact to effectuate a cure, to support the contention that the respondent failed to timely cure. As a result, petitioner failed to prove that there was no cure, or attempted cure by the respondent.

The notice to terminate, refers to the notice to cure, and similarly offers no additional facts as to the reason the petitioner needed access. The notice to terminate cites the law, states three (3) specific dates and times that respondent is alleged to have failed to provide access and concludes the failure to provide access "is a threat to [respondent] and other residents of the subject building." The facts alleged are insufficient to establish the grounds for eviction, and such factual insufficiency of the notice to terminate renders the instant holdover petition fatally defective.^[FN13]

Coupled with the petitioner's burden to demonstrate proof that reasonable access was attempted, and refused, which in this court's opinion, petitioner failed to prove, petitioner must also demonstrate that respondent's failure to provide access was "unreasonable."^[FN14]

Where an improvement for which landlord sought access, was not shown to be necessary or required by law, landlord failed to establish that tenant unreasonably refused access to the premises.^[FN15]

In the case at bar, the letters attempting to schedule access to the tenants apartment, stated that access was required (pursuant to a nonexistent lease) for "inspection" no other reason was provided. As such, the petitioner failed to allege facts to support that the failure to provide access "is a threat to [respondents] and other residents of the subject building." On the unique facts of this case, this court holds that it cannot be concluded that respondent withheld access [*7]"unreasonably."

In holdover proceedings commenced as a result of a tenant's failure to provide access for a specified purpose, such as the need to make emergency repairs, or a tenant causing specified damage in the building, which is an actual and clear "threat to [respondents] and [or] other residents of the subject building," a petitioner is not required to obtain a certificate of eviction, prior to commencing the proceeding.^[FN16] And this court hereby recalls that portion of it's prior Decision/Order.

As to the letters attempting to schedule access, for the reasons cited above, this court finds: (1) petitioner failed to demonstrate proper service of the letters; (2) the letters are fatally defective as they required access pursuant to a lease that was not offered or admitted into evidence, and later conceded does not exist; and (3) the letters improperly fail to state the reason petitioner needed access to inspect the apartment. Accordingly, the letters cannot form the basis to conclude that petitioner properly scheduled reasonable access or that the respondent's failure to provide access was unreasonable.

As to the predicate notices, for the reasons cited above, this court finds they are factually insufficient and cannot support the instant holdover proceeding. As the notices cite to law and conclude that the failure to provide access is a threat to building occupants and respondents, without stating the reason(s) why the failure to provide access is causing harm to the respondents or other occupants, they fail to contain the specificity required by law and cannot form the basis of the instant holdover proceeding^[FN17].

Accordingly, the petition is dismissed.

The foregoing constitutes the Amended Decision and Order of the court.

Dated:Bronx, New York

May 22, 2013/s/

JHC