Opinion
No. LT–0082–15.
05-14-2014
William GNATEK and Paulsen Properties/Janet Dimanno, Petitioners, v. Gunta KRASTS–VOUTYRAS, Respondent.
Opinion
On or about November 1, 2014, the Respondent entered into a written lease agreement renting the property known as 64 Hunter Street, Glens Falls, New York. The lease term was month to month, with a monthly rental payment of $927.00 due on the 5th day of each month. The “Landlord” designed in the written lease agreement is “Paulsen Rental Properties, LLC for Gnatek.” The written lease agreement was executed on behalf of the Landlord by Janet DiManno, as “Landlord/Agent.” The leased premises at 64 Hunter Street, Glens Falls, New York is owned by W.H. Gnatek, LLC, a New York limited liability company.
On February 25, 2014, the leased premises was conveyed from William H. Gnatek and Karen L. Gnatek to W.H. Gnatek, LLC.
On or about January 30, 2015, a three-day notice to pay rent or surrender premises was personally served on the Respondent. The three-day notice properly names the Respondent and the address of the leased property. The notice demands payment of $1,019.00 in unpaid rent for the premises for the period from January 1, 2015 to January 31, 2015. The Three-day Notice names “Kathleen Turner” as “Owner” and “Paulsen Rroperties/Janet Dimanno” [sic] as the “Landlord/Agent.”
On or about February 26, 2015, a summary proceeding was commenced by “William Gnatek & Paulsen Properties/Janet DiManno as Petitioners/Landlords” against the Respondent seeking possession of the leased premises.
The summary proceeding was repeatedly adjourned, on consent of the parties, as they attempted settlement negotiations.
By Amended Notice of Motion, dated May 4, 2015, the Respondent sought an order pursuant to CPLR 3212 dismissing the Petitioners' Notice of Petition and Petition for Eviction. Here, the Respondent asserts that the three-day notice is defective in that the notice identifies that the owner of the leased premises as “Kathleen Turner”, when the leased property is actually owned by W.H. Gnatek, LLC. The Respondent further asserts that the Petitioners lack standing and that their petition and notice of petition are defective because the actual owner of the leased premises, W.H. Gnatek, LLC, is not a named party to this action. Here, the Respondent asserts that “RPAPL § 721 requires the owner of the property in question [to] commence the special proceeding.” The Respondent further asserts that the Petitioners' petition was improperly verified by “Janet DiManno, pro se. ”
In response to the Respondent's motion for summary judgment, the Petitioners admit that W.H. Gnatek, LLC is the owner of the leased premises, but assert that the petition and notice of petition are not defective in that a) Paulsen Properties is the named Landlord under the parties' written lease and may maintain an eviction proceeding under RPAPL § 721(1) ; b) William Gnatek is a member of W.H. Gnatek, LLC, and they are “one in the same”; c) Paulsen Properties and William Gnatek, as the named landlord and member of the property owner, have standing to commence this action; d) Janet DiManno, as the property manager of Paulsen Properties was a proper person to verify the petition; e) the alleged deficiencies in the three-day notice and petition are non-jurisdictional; and f) the alleged deficiencies can be cured by amendment of the pleadings, as the Respondent has not demonstrated any prejudice.
A.Defects in the Three–Day Notice
RPAPL § 711(2) provides, in pertinent part, that a special proceeding may be maintained on the grounds that the “... tenant has defaulted in the payment of rent, pursuant to the agreement under which the premises are held, and a demand of the rent has been made, or at least three days' notice in writing requiring, in the alternative, the payment of the rent, or the possession of the premises, has been served upon him as prescribed in section 735.”
This section does not mandate the form or format of the demand or who may serve the demand. In fact, the statutory demand for the payment of rental arrears or surrender of the premises may be made orally or in writing. RPAPL § 711(2), Practice Commentaries, citing, Kulok v. Riddim Company, L.L.C., 185 Misc.2d 195, 712 N.Y.S.2d 728, (N.Y. City Civ.Ct.2000).
In order for the three-day notice to be sufficient, it merely needs to “... fairly afford the tenant, at least, actual notice of the alleged amount due and of the period for which such claim is made”. RPAPL § 711(2), Practice Commentaries, citing, Schwartz v. Weiss–Newell, 87 Misc.2d 558, 561, 386 N.Y.S.2d 191, 194 (N.Y. City Civ.Ct.1976).
Furthermore, absent a specific provision in the lease agreement that requires the owner of the property to personally issue the three-day notice, a three-day notice may be issued by an agent of the landlord, even if the agent was previously undisclosed to the tenant. See; Zirinsky v. Violet Mills, Inc., 152 Misc.2d 538, 578 N.Y.S.2d 88 (N.Y.City Civ.Ct.1991), citing, Vitale v. Imenso, NYLJ, February 29, 1988, at 17, col. 2 [App. T., 2d Dept.]; Beau Arts Properties v. Whelan, NYLJ, January 12, 1990, at 21, col. 2 [App. T., 1st Dept.]; 615 Company v. 354 East 66th St. Realty Corp., NYLJ, January 30, 1991, at 21, col. 2 [App. T., 1st Dept.]; Chinn v. Plastino, NYLJ, October 23, 1991, at 23, col. 3 (Housing Part, N.Y. County).
A mere defect in the name of the property owner set forth on an otherwise sufficient three-day notice is not a defect to the jurisdiction of the court. See: Tzifil Realty Corp. v. Temammee, 46 Misc.3d 144 (Sup.Ct., App.Term, 2015) (holding that the Civil Court erred in dismissing the petition as “jurisdictionally defective” based on a defect in the service of the written rent notice. A failure to comply with the statutory requirements for service of a rent notice does not affect a court's subject matter jurisdiction, which is conferred by statute). On the other hand, the failure to serve any notice to pay rent does constitute a jurisdictional defect. See: 89 N.Y. Jur.2d Real Property -Possessory Actions § 57, citing, St. James Court L.L.C. v. Booker, 176 Misc.2d 693, 673 N.Y.S.2d 821 (N.Y. City Civ.Ct.1998) (holding that proof of a demand for rent is a jurisdictional requisite to maintain a summary proceeding and failing to comply calls for dismissal of the action).
In the present case, the three-day notice did provide the Respondent with the amount of rent claimed to be due and owning, the period of time of the alleged default in rent, the address of the leased premises and the name and phone number of Paulsen Properties. The Petitioners' three-day notice was, therefore, sufficient under RPAPL § 711(2). The mere fact that the three-day notice incorrectly listed the owner of the leased premises as Kathleen Turner does not create a jurisdictional defective.
B.Alleged Lack of Standing and Improper Verification
RPAPL § 721 identifies the persons who may commence a summary proceeding. RPAPL § 721 provides that “a summary proceeding may be brought by:
1. The landlord or lessor.
2. The reversioner or remainderman next entitled to possession of the property upon the termination of the estate of a life tenant, where a tenant of such life tenant holds over.
3. The purchaser upon the execution or foreclosure sale, or the purchaser on a tax sale to whom a deed has been executed and delivered or any subsequent grantee, distributee or devisee claiming title through such purchaser.
4. The person forcibly put out or kept out.
5. The person with whom, as owner, the agreement was made, or the owner of the property occupied under an agreement to cultivate the property upon shares or for a share of the crops.
6. The person lawfully entitled to the possession of property intruded into or squatted upon.
7. The person entitled to possession of the property occupied by a licensee who may be dispossessed.
8. The person, corporation or law enforcement agency authorized by this article to proceed to remove persons using or occupying premises for illegal purposes.
9. The receiver of a landlord, purchaser or other person so entitled to apply, when authorized by the court.
10. The lessee of the premises, entitled to possession.
11. Not-for-profit corporations, and tenant associations authorized in writing by the commission of the department of the city of New York charged with enforcement of the housing maintenance code of such city to manage residential real property owned by such city.”
Thus, contrary to the Respondent's assertions, RPAPL § 721 does not require the owner of the leased property to commence the special proceedings. Instead, the Real Property Actions and Proceedings Law expressly delineates the parties who may maintain an eviction proceeding against a tenant to include a “landlord or lessor.” Generally, a party's ability to act as landlord and to maintain a summary proceeding will turn on whether there is a right to collect rent and to recover possession of the property. NY Practice, Landlord and Tenant Practice in New York § 2:5.
In sum, proof of ownership is not a prerequisite to maintaining a proceeding. 30 Ellwood St Assocs v. Aguerre, 4/11/88 N.Y.L.J. 16, col. 1 (App. Term 1st Dept); City of New York v. Shawn Development Corp, 6/28/90 N.Y.L.J. 28, col. 6 (App. Term 2d and 11th Jud. Dists.). However, the Petitioner must provide the court with proof of standing to maintain the summary proceeding. 626 Realty v. Gumbs, 2/27/92 N.Y.L.J. 27, col. 1 (App. Term 2d and 11th Jud. Dists.); Sollar v. Bloom, 91 Misc.2d 884, 398 N.Y.S.2d 836 (N.Y. City Civ.Ct.1977) ; Zisser v. Bronx Cigar Corp., 91 Misc.2d 1025, 399 N.Y.S.2d 109 (N.Y. City Civ.Ct.1977) ; see also: 300 West Realty Co. v. Wood, 69 Misc.2d 580, 330 N.Y.S.2d 524 (N.Y. City Civ.Ct.1971), order aff'd, 69 Misc.2d 582, 330 N.Y.S.2d 527 (Sup.Ct., App.Term, 1972).
In Ferber v. Salon Moderne Inc., 174 Misc.2d 945, 668 N.Y.S.2d 864 (Sup.Ct., App.Term, 1997), a summary non-payment proceeding, the tenant moved to dismiss the petition because petitioner's wife, rather than the petitioner, actually held title to the leased property. The Petitioner, however, was the named “landlord” on the parties' lease agreement. The Appellate Term, First Department, allowed the proceeding to go forward, holding that under RPAPL § 721 a summary proceeding for possession could be brought by “the landlord or lessor”. Since the Petitioner was the named landlord under the parties' lease agreement, he was the proper party to commence the proceeding. The court further held that questions of title or ownership are not to be litigated in a summary proceeding. Id. at 946.
Similarly, in G.N. Associates by Coombes v. Griffen, 178 A.D.2d 747, 577 N.Y.S.2d 184 (3d Dept 1991), the Appellate Division, Third Department, held that the Petitioner was the proper party, even though the petitioner was not the owner of the premises occupied by the respondent. Here, the Petitioner was the party that entered into an agreement with the respondent and, under this agreement, the petitioner had given the respondent the right to occupy the apartment. The petitioner was also named as the landlord on the leases between it and the other tenants in the premises and, as a result, the Petitioner was the proper party to commence a summary proceeding.
Thus, absent some evidence that the person named in the lease agreement as the “landlord or lessor” lacks the authority from the owner to commence the summary proceeding, the party identified as the “landlord or lessor” can maintain a summary proceeding. Kay Management Group Inc.,/P.O.M.P. v. Hill, 145 Misc.2d 161, 545 N.Y.S.2d 1015 (N.Y. City Civ.Ct.1989) ; G.N. Associates by Coombes v. Griffen, 178 A.D.2d 747, 577 N.Y.S.2d 184 (3d Dept 1991) ; Ferber v. Salon Moderne Inc., 174 Misc.2d 945, 668 N.Y.S.2d 864 (Sup.Ct., App.Term, 1997).
In the present case, Paulsen Rental Properties, LLC is the named “landlord or lessor” pursuant to a written lease agreement. Under the parties' lease agreement, the Respondent was directed to pay the monthly rent to Paulsen Rental Properties, LLC at its Glens Falls offices, and not to the owner at its Saratoga Springs address. The parties' lease agreement also authorized Paulsen Rental Properties, LLC to enter and inspect the leased premises. Under the parties' lease agreement, Paulsen Rental Properties, LLC had the authority to grant the Respondent permission to sublet the leased premises, was authorized to allow additional persons to occupy the leased premises and could authorize the Respondent to make alterations to the leased premises. Based on the parties' written lease agreement, Paulsen Rental Properties, LLC is entitled to commence the summary proceedings.
The Respondent correctly notes that the Petitioners' Petition incorrectly identifies the Petitioners as “William Gnatek and Paulsen Properties/Janet DiManno,” rather than “Paulsen Rental Properties, LLC.” However, absent prejudice to the Respondent, this error can be cured by amendment of the pleadings.
In Zirinsky v. Violet Mills, Inc., 152 Misc.2d 538, 578 N.Y.S .2d 88 (N.Y. City Civ.Ct.1991), the Respondents argued that since the petition and notice of petition were miscaptioned to read “Robert” Zirinsky as landlord instead of “Richard” Zirinsky, the correct landlord of Respondents, the petition was defective and must be dismissed. The Court disagreed and denied the Respondents' motion holding that no prejudice resulted, and none was claimed, from the miscaptioning of the petition and notice of petition. The court further held that defects, mistakes and irregularities in the caption of the proceeding are to be ignored by the Court absent a showing of prejudice. Id., citing, CPLR 104, 2001, 2101[f], 3025[c], 3026 ; Cucinotta v. Saljon Enterprises, Ltd., 140 Misc.2d 681, 532 N.Y.S.2d 39 (N.Y. City Civ.Ct.1988). See also: First Wisconsin Trust Co. v. Hakimian, 237 A.D.2d 249, 654 N.Y.S.2d 808 (2d Dept.1997).
It is well settled that captions should be liberally construed and defects in form should be disregarded, unless demonstratively prejudicial to the responding party. See: Lunn v. Holiday Corp., 181 A.D.2d 1037, 586 N.Y.S.2d 537 (4th Dept.1992) ; Simpson v. Kenston Warehousing Corp., 154 A.D.2d 526, 546 N.Y.S.2d 148 (2d Dept.1989) ; Homemakers, Inc. v. Williams, 100 A.D.2d 505, 472 N.Y.S.2d 711 (2d Dept.1984) ; Pinto v. House, 79 A.D.2d 361, 364, 436 N.Y.S.2d 733 (1st Dept.1981) ; Covino v. Alside Aluminum Supply Co., 42 A.D.2d 77, 80, 345 N.Y.S.2d 721 (4th Dept.1973) ; Presidential Mgt. Co. v. Farley, 78 Misc.2d 610, 612, 359 N.Y.S.2d 424 (Sup.Ct., App.Term, 1974).
In this case, no prejudice has resulted to the Respondent from the miscaptioning in the pleadings. In fact, no prejudice was claimed by the Respondent. As a result, the caption of this action is hereby amended to read: “Paulsen Rental Properties, LLC, Petitioner against Gunta Krasts–Voutyras, Respondent. ”
Finally, this Court finds that Janet DiManno was the proper party to verify the Petition on behalf of Paulsen Rental Properties, LLC., as Ms. DiManno had signed the lease agreement on behalf of Paulsen Rental Properties, LLC. Ms. DiManno was certainly not a stranger to the Respondent. RPAPL §§ 741, 721. The Respondent's motion for summary judgment is denied.
The matter is placed on the court calendar for further proceedings on May 20, 2014 at 9:30 a.m.