Relatedly, defendant asserts that the notice is legally and factually erroneous because
(i) one of the supporting facts given in the notice is that the Estate had not provided
proof of homeowner's insurance for 2019 through 2021; and (ii) the lease and house
rules do not require proof of insurance. (See NYSCEF No. 76 at 8-9.) But the
notice does not represent that the failure to provide proof of insurance is a
default—only that the absence of proof of insurance supported plaintiff's
conclusion that the Estate in fact lacked the necessary underlying insurance itself.
(See NYSCEF No. 30 at 1-2.) Defendant does not establish how this
representation in the notice is either legally or factually erroneous.
B. Whether Plaintiff Could Terminate the Lease by Service of Notices of Default
and Termination
Defendant argues that the lease contains a condition subsequent and therefore that
plaintiff "was required to commence a plenary action to recover possession of the
Apartment before declaring the Lease terminated." (NYSCEF No. 76 at 15.) Plaintiff
contends that the lease instead contains a conditional limitation, and therefore does not
"require Plaintiff to commence a plenary action to recover possession of the Apartment
before it terminated the Lease." (NYSCEF No. 83 at 13.) This court concludes that the
lease contains a conditional limitation.
To create a condition subsequent, the lease must "provide[ ] for a condition upon the
breach of which the landlord may exercise his or her reserved right to declare the lease
terminated and reenter the premises." (LLDP Realty Co., LLC v AGHR Enterprises LLC, 44 Misc 3d
716, 718 [Civ Ct, Kings County 2014].) Breach of a condition subsequent "does not
automatically terminate the lease. The lease continues until the landlord, who has the