
    Parcel 115 Inc., Landlord, v. Mildred Ventura, Tenant, and Ricardo Chiari et al., Undertenants.
    Municipal Court of the City of New York, Borough of Manhattan,
    October 15, 1958.
    
      
      David Alderman for landlord.
    
      Nathaniel M. Oallin for tenant.
   Guy Gilbert Ribaudo, J.

The landlord instituted this summary proceeding on the ground that the tenant is violating a substantial obligation of her tenancy in that she has permitted the subtenant to remain in possession beyond the period specifically authorized in the lease between the tenant and the landlord.

The landlord relies upon subdivision 1 of section 52 of the Rent and Eviction Regulations of the Temporary State Housing Rent Commission. This section permits the maintenance of a summary proceeding without a certificate of eviction issued by the Rent Commission where the tenant is violating a substantial obligation of the tenancy. This section is grounded upon section 5 (subd. 1, par [a]) of the State Residential Rent Law (L. 1946, ch. 274, as amd.).

The statute which, of course, is controlling upon the Rent Commission specifically provides that the summary proceeding may be maintained if “ the tenant * * * has failed to cure such violation after written notice by the landlord that the violation cease within ten days or within the three month period immediately prior to the commencement of the proceeding the tenant has wilfully violated such an obligation inflicting serious and substantial injury to the landlord ”.

The notice does not comply with the statutory requirements. There is no language by the landlord that the alleged violation cease within 10 days. The proof in no way established the statutory alternative that the tenant has willfully violated a substantial obligation and thereby inflicts serious and substantial injury to the landlord”. To the contrary, the proof shows that the landlord has been collecting a higher rent than permitted by the expired lease, and which was authorized by the Rent Commission solely upon the condition that the subletting be permitted.

This notice of eviction being fatally defective, this summary proceeding is unwarranted. (660 Locust St. Corp. v. MacPherson, 279 App. Div. 927 [1952].)

Because the notice is defective, the court does not pass upon the question as to whether on the merits there is a substantial violation of the tenancy.

Petition dismissed.  