Were Predicate Notices and Evidence Sufficient to Evict?
The April 22, 2022 notice to cure and demand for access to apartment Riverbay Corp., as landlord, to Stanley Frere. as tenant, alleged the Frere had:
” …amassed an unreasonable amount of clothing, debris, boxes, plastic bags, papers, personal items and garbage in the apartment to the point where the unit is so filled with such items as to make access into and navigation throughout the apartment dangerous and impracticable. Such accumulation which includes inflammable materials, piled several feet high throughout the apartment, interferes substantially with your safety, comfort and well-being as well as that of the occupants and members of the housing complex of which the apartment forms a part in that same constitutes a substantial fire hazard.”
Attached to the notice to cure were eight (8) photos, which purported to show “typical examples of the manner in which [Frere] maintain[ed] the apartment.” The notice required cure by July 7, 2022 and demanded that Frere provide access to Riverbay’s personnel between 9AM and noon on July 8, 2022, the first business day after the cure period expired.
The September 9, 2022 notice of termination alleges that Frere failed to comply with the notice to cure and demand for access. Riverbay alleged that Frere did not provide access to the apartment as demanded and did not cure the conditions described in the notice to cure.
Frere moved to dismiss the proceeding under CPLR § 3211(a)(7), arguing that the petition failed to state a cause of action; and also under CPLR § 3103 to suppress the photographs attached to the notice to cure alleging that they were improperly obtained without his permission.
Riverbay opposed the motion and cross-moved to dismiss and/or strike counterclaims, defenses, and affirmative defenses from Frere’s answer.
CPLR § 3103(c) states, “If any disclosure under this article has been improperly or irregularly obtained so that a substantial right of a party is prejudiced, the court, on motion, may make an appropriate order, including an order that the information be suppressed.”
Frere argued that the photographs taken on June 18, 2021 were taken without permission when Riverbay’s agents entered the apartment, also without his permission, to install a smoke detector.
Frere , who was required to establish that the photographs were obtained improperly or irregularly, argued that Riverbay’s actions violated sections 27-2008 of the Housing Maintenance Code and 25-101 of the Rules of New York.
§ 27-2008, titled “Owner’s right of access” states in relevant part,
No tenant shall refuse to permit the owner, or his or her agent or employee, to enter such tenant’s dwelling unit or other space under his or her control to make repairs or improvements required by this code or other law or to inspect such apartment or other space to determine compliance with this code or any other provision of law, if the right of entry is exercised at a reasonable time and in a reasonable manner.
That provision only requires that an owner enter a unit “at a reasonable time and in a reasonable manner” to “make repairs required by this code.” Critically, Frere did not dispute that Riverbay had been trying to arrange access for some time to install smoke and carbon monoxide detectors or that a smoke and carbon monoxide detectors were required to be installed in his apartment. In other words, hazardous conditions existed in Frere’s apartment and Riverbay arranged access to correct them.
Prior case law made it clear that a landlord may enter an apartment under such circumstances. Indeed, a landlord has a duty to do so–and where a landlord retains the right to enter its leased premises, it may then be charged with constructive notice of a hazardous defect upon those premises. Such a right of entry is provided in the Administrative Code for the purpose of enabling a landlord to comply with Code provisions generally and a landlord retains the right of entry for that purpose.
That Frere would have preferred access at another time [he did not state what alternative date(s) he offered] hardly mattered under those circumstances. After all, it was Riverbay that could be blamed [and perhaps held liable] if Frere or any other building occupant or employee were injured or killed by a fire because there was no working smoke detector in Frere’s apartment that might have warned of the coming danger. Violations involving the absence of smoke detectors, whether in vacant or occupied apartments, affect the safety of all its occupants and users. The absence of smoke detectors gravely endangers life and property. That was especially true given the state of the apartment shown in the photographs. Consequently, Riverbay properly accessed the apartment under § 27-2008. In fact, a landlord should be provided immediate access to abate violations found in tenant’s apartment.
When requesting access under § 27-2008, NYCRR § 25-101 specifies the form and timing of notice to the tenant. Frere’s quarrel with Riverbay’s notice came down to the fact that the notice did not state Riverbay’s would take photographs.
But Riverbay’s agents were within their right to access the apartment. Frere did not cite to any case law holding that a landlord may not take photographs when lawfully inside a tenant’s apartment. Nor did the Administrative Code provision or NYCRR provision cited specifically prohibit photography. After all, it made perfect sense for landlords, tasked with maintaining residential units, to document their efforts to comply with relevant laws and codes.
In any event, absent some constitutional, statutory, or decisional authority mandating the suppression of otherwise valid evidence, such evidence will be admissible in a civil action even if procured by unethical means. New York follows the common-law rule that the admissibility of evidence is not affected by the means through which it is obtained. Indeed, photographs, even those obtained by deceptive or unethical means, have been admitted into evidence in summary proceedings.
Frere next argued that dismissal was required under CPLR § 3211(a)(7) because the pleadings did not state any facts after the notice to cure, the implication being that the Riverbay did not know whether Frere cured.
A predicate notice is sufficient if it is reasonable in view of all attendant circumstances. Here, advising Frere to “cure” the violations of the occupancy agreement—the accumulation of various material—by a date certain was sufficient. A cure occurs when the specified violations cease. And a notice to cure that forms the basis for a petition initiating a holdover proceeding must set forth sufficient facts to establish grounds for the tenant’s eviction, and inform the tenant as to how the tenant violated the lease, as well as the conduct required to prevent eviction.
Frere raised no objection to the notice to cure in the motion. Rather, he alleged the notice of termination was defective because it did not allege any objectionable conduct occurring after the notice to cure expired.
Frere’s factual statement was basically true—the notice of termination alleged that Frere did not cure the complained of conditions because management observed no activity which would indicate he you had taken any steps to comply with the notice–and the presumption of continuance. Riverbay responded that the notices together were sufficient under the particular circumstances of the case because they allowed Frere to prepare a defense.
In view of all the attendant circumstances, the termination notice sufficiently alleged Frere’s failure to comply with the notice to cure. Though more specificity might have been preferable, its absence was not necessarily fatal. A predicate notice in a holdover summary proceeding need not lay bare a landlord’s trial proof, and will be upheld in the face of a jurisdictional challenge where, as here, the notice was, as a whole, sufficient adequately to advise tenant and to permit it to frame a defense.
While there was a line of decisions that held that a termination notice must state facts occurring after the notice to cure expired, the Court disagreed that there was such a bright-line rule. In other decisions, the court found the “reasonableness” standard was not susceptible to a bright-line rule. Rather, reasonableness was a fact-specific determination based on a totality of the circumstances.
Here, the termination notice, in conjunction with the notice to cure, adequately apprised Frere of the grounds upon which the case was based, thus permitting Frere to prepare a defense. Given the relative detail of the allegations listed in the notice to cure, which was attached to and made apart of the notice of termination, the termination notice met the minimum standard of reasonableness.
The notice of termination in this case contained no new facts while alleging non-compliance with the attached notice to cure. The notice to cure, which was incorporated by reference in the notice of termination, was reasonable in view of the attendant circumstances, as it fairly stated the nature of Riverbay’s claim and the facts necessary to establish the existence of grounds for eviction.
Frere’s motion to dismiss the eviction proceeding and to suppress the photographic evidence was denied.