Opinion
SP 000394/10.
Decided April 2, 2010.
Joseph C. Andruzzi, Esqs., Attorneys for Petitioner, Two Lincoln Gate Boulevard, New York 11803, 516-942-0735; Daniel F. Spitalnic, Esq., Attorney for Respondent, Six Grace Avenue, Lower Level, Great Neck, New York 11021, 516-439-4001.
Respondent-Tenants Great Neck Retail Supply Corp. and Orchard Associates, Inc., move to dismiss the non-payment proceeding brought against them by Petitioner-Landlord Kismet Management Corp.
FACTS AND PROCEDURAL HISTORY
Petitioner brought this non-payment proceeding against Respondents on January 20th, 2010 in the amount of $32,668.70 (later amended to $44,516.81 on February 22nd). One week prior, on January 13th, 2010, written three-day rent demands were mailed to Respondents at the subject premises, via U.S.P.S. First Class and Registered Mail.
Respondents filed a motion to dismiss the non-payment proceeding on February 18th, 2010. Petitioner filed its opposition to the motion on March 1st. Respondents filed a reply affirmation on the 3rd.
MOTION TO DISMISS
Respondents assert several procedural errors in the petition which should render it defective.
1. PETITION WAS NOT ISSUED BY THE CLERK OF THE COURT
Respondents state that since the notice of petition does not have a signature or stamp of the Court Clerk, it should be dismissed citing RPAPL 731. The applicable statute, RPAPL § 731.1 states:
§ 731. Commencement; notice of petition
1. The special proceeding prescribed by this article shall be commenced by petition and a notice of petition. A notice of petition may be issued only by an attorney, judge or the clerk of the court; it may not be issued by a party prosecuting the proceeding in person.
The statute gives equal weight to "an attorney, judge or the clerk of the court." It does not state that the Clerk must sign the petition. In the instant case, the notice of petition was, in fact issued by the Clerk, and is signed by Petitioner's attorney who is not a "party" to the case. The statute is plainly worded and Petitioner has complied with it.
Rudolph de Winter and Larry M. Loeb write in the Practice Commentaries to RPAPL § 731 of McKinney's Consolidated Laws of New York, 2009, the following which indicates that Petitioner has complied with this section:
In 239 South 1st Street LLC v. Ribot , 2007, 16 Misc 3d 1101(A), 841 NYS2d 828, 2007 NY Slip Op. 51221(U), the notice of petition was in fact issued by the Clerk of the NYC Civil Court, however the copy of the notice of petition and petition served on the respondent contained neither the signature nor a stamped facsimile thereof on the line above the designation "Clerk of the Civil Court." Noting that except for the absence of the Clerk's signature the notice of petition conformed in all important aspects to the notice of petition filed with the court, the Civil Court denied respondent's assertion that it was jurisdictionally defective.
Other courts have found similar notices of petition lacking the Clerk's signature and/or stamp, to be proper:
1. Parker v. Paton Associates Inc. Of Amsterdam ( 128 Misc 2d 871, 491 NYS2d 550 [N.Y.City Ct.,1985])
2. Doughty Associates v. Urban Q, LLC. ( 2003 WL 22345045 [N.Y.Dist.Ct., 2003])
3. First Ave. Owners Corp. v. Riverwalk Garage Corp. ( 6 Misc 3d 439, 784 NYS2d 844 [N.Y.City Civ.Ct., 2004])
2. PETITION FAILS TO STATE THE PETITIONER'S CORPORATE STATUS AS REQUIRED BY CPLR § 3015 AND RPAPL § 402.
This Court rejected this defense in 38-40 Brooklyn Holding LLC v. Pasta Italiana Inc. ( 26 Misc 3d 1226 (A), 2010 WL 653973 [N.Y.Dist.Ct. 2010]):
The respondents argue that the petition should be dismissed on two grounds. The first is that the petitioner failed to duly plead, pursuant to CPLR § 3015(b), that it is a corporation and "specify the state, country or government, by or under whose laws the party was created." However, the contents of the petition are governed by RPAPL § 741 which states that every petition shall:
1. State the interest of the petitioner in the premises from which removal is sought.
2. State the respondent's interest in the premises and his relationship to the petitioner with regard thereto.
3. State the premises from which the removal is sought.
4. State the facts upon which the special proceeding is based.
5. State the relief sought . . .
Here, the petitioner describes itself as the owner and landlord of the subject premises. Said description has been held sufficient to state the petitioner's interest in the premises ( Dream Team Associates LLC v. Broadway City, LLC 2003 NY Slip Op 50894U [N.Y.City Civ.Ct.]). The petition satisfies the requirements of RPAPL § 741. The respondents' contention that the dismissal is warranted due to the petitioner's failure to plead, in accordance with CPLR § 3015(b), is without merit.
In New York Practice, Fourth Edition, David D. Siegel writes in Section 574 the following concerning the contents of the petition:
§ 574. Petition in Summary Proceeding
The contents of the petition are set forth in RPAPL § 741. They include allegations of the petitioner's and respondent's interests in the premises and their relationship to one another, a description of the premises, the facts on which the proceeding is based, and the relief sought.
In the instant case, Respondents refer to RPAPL § 402. This statute falls under Article 4: Valuing Interests in Real Property, and has no applicability to the case. Based upon the above, Respondent's argument is without merit.
3. THE RENT DEMAND SERVED DOES NOT CONTAIN AN ACTUAL SIGNATURE.
The three-day rent demand attached to the initial petition contains an alleged, conformed copy of the original demand served upon Respondents. In lieu of an actual signature, "/s/" appears in the signature line for Paula Scappatura, the Chief Executive Officer of Kismet Management Corp., and the person who executed the written lease between the parties. In its amended petition, dated February 22nd, the alleged, original rent demand with an actual signature of Ms. Scappatura is attached.
Respondents state that the typewritten name of the Corporate Petitioner on the rent demand alone is insufficient. Respondents cite three cases to support its position.
The first case cited is Warehouse Eyes v. Hann (12/19/90 N.Y.L.J. 22, [col.4]) in which Judge Gans states:
The rationale that a tenant served with such notice is entitled to the assurance that it is really her landlord who is serving the notice of default or of termination, applies equally to a notice signed by an unknown third person and to an unsigned form notice typed on a blank piece of paper and bearing no signature. The potential for mischief is just as great in each case, since a typewritten form without a letterhead can be prepared by anyone at all.
In the instant case, the "/s/" signature belonged to Paula Scappatura, the Chief Executive Officer, it did not belong to an unknown third person. The demand also clearly states three (3) times that it originated from Kismet Management Corp., fee owner of the premises and landlord. Therefore, this case cited is not applicable.
An additional rationale for a typewritten signature being insufficient is raised in Fazal Realty Corp v. Ana Paz, ( 151 Misc 2d 396, 573 NYS2d 399 [N.Y.City Civ.Ct. 1991]). In this case:
Petitioner allegedly demanded the rent claimed due in this proceeding by service of a three-day notice in writing, pursuant to RPAPL 711 (2). The three-day notice here was not physically signed by anyone. The word "By" was printed at the bottom of the notice, and thereafter were typed the words:
"FAZAL REALTY CORP"
"NY CORPORATION".
This case differs from the instant case in that neither an "/s/" appeared on the signature line of the rent demand, nor did the name of a corporate officer appear. Furthermore, the tenant in Fazal Realty Corp v. Ana Paz "questions whether this corporate petitioner is her landlord." Respondents Great Neck Retail Supply Corp. and Orchard Associates, Inc. do not deny that Kismet Management Corp., with Paula Scappatura as Chief Executive Officer, is their landlord, nor do they deny the itemized schedule of rent owed.
In the third case cited, Anastasia Realty Co. V. Lai, ( 173 Misc 2d 1012, 662 NYS2d 714 [N.Y.City Civ.Ct. 1997]):
The demand notice in question is on blank letterhead. At the bottom of the notice it reads: "ANASTASIA REALTY CO., Landlord By: Cohen, Hurkin, Ehrenfeld, Pomerantz Tenenbaum, Attorneys for the Petitioners."
While the term "Landlord" is used four other times in the notice, no other language is used in the body of the notice that makes it manifestly evident that the notice is authored by the petitioner. Certainly there is nothing in the notice that shows who authored the correspondence, or that whoever authored the letter had authority to bind the landlord by the creation or distribution of the demand document.
This case differs from the instant case in that neither an "/s/" appeared on the signature line of the rent demand, nor did the name of a corporate officer appear. Also, "there is nothing in the notice that shows who authored the correspondence." However, in the instant case, Kismet Management Corp. is named three (3) times and Paula Scappatura, Chief Executive Officer is named directly under the signature line; she executed the lease on behalf of Kismet.
All three (3) cases cited by Respondents are not similar to the instant case in that all three (3) involve either a signature by an unknown third person or no signature at all. And neither of the three (3) have the simultaneous oral demand, which should have eliminated any confusion that the lack of an actual signature might have caused when delivery of the written rent demand occurred.
In Doughty Associates v. Urban Q, LLC. ( 2003 WL 22345045 [N.Y.Dist.Ct. 2003]), the typewritten signature is discussed:
In the instant case the rent demand contained a typewritten rather than a handwritten signature. Courts have upheld the sufficiency of a rent demand with a typewritten signature. In L B 595 Madison Inc. v. Susan Sheehan, Inc., NYLJ, August 31, 1994, page 22, col.6, the Civil Court, New York County held that not only does RPAPL 711(2) not require a signature, but that under New York General Construction Law § 46 a typewritten signature is clearly valid. New York General Construction Law § 46 provides, in pertinent part that "the term signature includes any . . . mark or sign, written, printed stamped. . . ." Therefore, a rent demand that contains a typewritten signature that clearly delineates the petitioner's name and "his capacity as landlord of the premises" is jurisdictionally sufficient. Sober v. Baker, NYLJ, April 14, 1998, page 27, col. 3, (Civ Ct., Kings Co)
In the case before this court the typewritten signature on the rent demand read as follows: "Doughty Associates c/o Ben Elias Industries Corp., BY Allan Elias, Partner." This signature clearly identifies the individual who is making the demand as a partner in the landlord entity. Additionally, inasmuch as Allan Elias was the partner who signed the lease in January 2001, he clearly had the authority to bind the landlord.
As there is no statute requiring a signature be an actual one rather than a typewritten one, it is left to the Court's judgment as to whether Petitioner satisfied Respondents' entitlement to the assurance that it is really their landlord who is serving the rent demand. This Court finds that the written demand is sufficient because it contained the name Paula Scappatura, Chief Executive Officer, who also executed the written lease between the parties in the instant case, and contained an uncontested and detailed schedule of rent owed. Based upon the above, the Court finds that the rent demand is proper.
4. SERVICE OF THE RENT DEMAND AND PETITION WERE NOT PROPER UNDER RPAPL § 735 AND THE PARTIES LEASE
Respondents state that the rent demand and petition were not mailed to Respondents by certified mail, return receipt requested as required by RPAPL § 735 and ¶ 28 of the written lease agreement. They further state that the Lease set forth 400 Northern Blvd., Great Neck, New York as the address for additional mailing of the rent demand and petition.
Petitioner complied with RPAPL § 735 which states that the demand must be delivered "by mailing to the respondent both by registered or certified mail and by regular first class mail."
¶ 28 of the Lease also addresses the manner by which a rent demand must be made:
Bills and Notices: 28. Except as otherwise in this lease provided, any notice, statement, demand or other communication required or permitted to be given, rendered or made by either party to the other, pursuant to this lease or pursuant to any applicable law or requirement of public authority, shall be in writing (whether or not so stated elsewhere in this lease) and shall be deemed to have been properly given, rendered or made, if sent by registered or certified mail (express mail, if available), return receipt requested, or by courier guaranteeing overnight delivery and furnishing a receipt in evidence thereof, addressed to the other party at the address herein above set forth (except that after the date specified as the commencement of the term of this lease, Tenant's address, unless Tenant shall give notice to the contrary, shall be at the building), and shall be deemed to have been given, rendered or made (a) on the date delivered, if delivered to Tenant personally, (b) on the date delivered, if delivered by overnight courier or (c) on the date which is two (2) days after being mailed. Either party may, by notice as aforesaid, designate a different address or addresses for notices, statements, demand or other communications intended for it. Notices given by Owner's managing agent shall be deemed a valid notice if addressed and set in accordance with the provisions of this Article. At Owner's option, notices and bills to Tenant may be sent by hand delivery, fax, mail.
As for the proper method of mailing, ¶ 28 states that the available mailing options are "registered or certified mail (express mail, if available), return receipt requested, or by courier guaranteeing overnight delivery and furnishing a receipt in evidence thereof." The final sentence of ¶ 28 states: "At Owner's option, notices and bills to Tenant may be sent by hand delivery, fax, mail." The Petitioner may serve by registered, certified, express mail or by personal delivery.
As for the proper mailing address of Respondents, ¶ 28 states that after the commencement date of this lease, Tenant's address shall be at the "building." According to the cover page of the lease, the commencement date is March 1st, 2008 and "the building" is 1035 Old Country Rd, Westbury, NY 11590. Therefore, additional mailings of any notices to any other address of Respondents is not required.
Petitioner has complied with the written lease agreement ¶ 28 and RPAPL § 735 in that a written rent demand was hand-delivered and mailed to the subject premises via U.S.P.S. First Class and Registered Mail. The notice of petition and petition were hand-delivered at the subject premises, followed by a mailing to the subject premises via U.S.P.S. First Class and Certified Mail. Additionally, an oral demand was made for the rent.
5. NO AFFIDAVIT OF SERVICE OF THE RENT DEMAND IS ANNEXED TO THE PETITION
Respondents state in their motion to dismiss:
29. When the petition alleges the service of a statutory rent notice, as it does here, the affidavit of service of the notice must be attached to the petition Witherbee, Sherman Co. V. Wykes, 159 App. Div. 24, 25, 143 N.Y.S. 1067 (1913); Fitzgerald v. Washington, 80 Misc 2d . 861, 864, 365 NYS2d 598 (1975); see RPAPL 741[4].
Respondents misquote the cases. In Kentpark Realty Corp. v. Laserstone Corp. ( 3 Misc 3d 28, 779 NYS2d 324 [N.Y.Sup.App.Term,2004]), the Supreme Court, Appellate Term, held that:
In a nonpayment proceeding, when the petition alleges the service of a statutory rent notice (RPAPL 711), the petition must state the manner of service, or the affidavit of service of the notice must be attached to the petition ( Witherbee, Sherman Co. v. Wykes, 159 App.Div. 24, 25, 143 N.Y.S. 1067; Beach v. McGovern, 41 App.Div. 381, 58 N.Y.S. 493; Fitzgerald v. Washington, 80 Misc 2d 861, 864, 365 NYS2d 598; see RPAPL 741; see also CLS RPAPL 741, Advisory Committee Notes [stating that a statutory notice "is one of the facts upon which the special proceeding is based"]).
Thus, the Appellate Term held that Petitioner had the option of 1.) stating the manner of service, or 2.) attaching the affidavit of service of the notice. It is not required that Petitioner attach the affidavit if they state the manner of service. In its non-payment petition, Petitioner stated the manner of service (personal delivery and U.S.P.S. First Class and Registered Mail) and in the amended non-payment petition, attached receipts of said mailings. Thus, they have met their obligation.
Respondents further claim that personal service upon "Niki" Hakimian is not proper under RPAPL § 735.
Respondents state that the personal service was improper as "Niki" (Navid Hakimian) is not employed by Respondent Great Neck Retail, he works in Great Neck at 595a Middle Neck Road (premises not involved with this case), and he "was at the premises because he was picking up merchandise."
In its amended petition, Petitioner states "Niki" is Navid Hakimian, Chief Executive Officer and corporate principal of Great Neck Retail Supply Corp. As evidence of his employment, Petitioner attached as Exhibit C, the New York State Department of State database print-out showing Navid Hakimian as Chairman or Chief Executive Officer of Great Neck Retail Supply Corp.
In his affidavit, Navid Hakimian does not deny being served with the rent demand, nor does he deny that he is Chairman or Chief Executive Officer of Great Neck Retail Supply Corp. Furthermore, Navid Hakimian's name appears in a rider to the lease agreement that Respondents provided to this Court. In ¶ (E), the last sentence states:
Tenant may conduct its business at the premises under a Doing Business As, a "DBA" as long as the DBA is owned by entities owned by Sirous, Louie, Navid and/or Payvand Hakimian."
TRAVERSE HEARING
This Court rejects Respondent's call for a traverse hearing because:
1. the Court's finding that mailings of the rent-demand and petition complied with the written lease agreement ¶ 28 and RPAPL § 735,
2. Navid Hakimian's name appearing in the written lease agreement,
3. the failure of Respondents to deny the allegation that "Niki" is Navid,
4. the failure of Navid to deny that he is an employee of Great Neck Retail Supply Corp.,
5. the failure of Navid to contest the New York State Department of State database print-out showing Navid Hakimian as Chairman or Chief Executive Officer of Great Neck Retail Supply Corp., and
6. and the failure of Navid to deny that he was served with the rent demand.
This Court finds that Respondents have not raised a material issue of fact regarding service of the rent demand or notice of petition and petition. Thus, Respondent's request for a traverse hearing is denied.
6. ORCHARD IS NOT A PARTY TO THE LEASE
The evidence tends to suggest that Orchard Associates, Inc. does operate in part from the subject premises as demonstrated by the business card and the copies of the checks used for payment of rent by Orchard since March 2009.
Louie and Navid Hakimian state that Great Neck Retail Supply Corp. still operates from the premises. However, Great Neck Retail Supply Corp. dissolved on July 29, 2009 according to Exhibit C of Petitioner's Amended Non-Payment Petition, the New York State Department of State database print-out.
The above suggests that both Great Neck Retail Supply Corp. and Orchard Associates, Inc. are necessary and proper parties to the case, as defined by Rasch's Landlord and Tenant, § 38:28:
Necessary parties are those without whom the court cannot, if proper objection be made to their omission, proceed to a decree or judgment. Proper parties are those whose absence will not prevent the entry of a binding judgment, but whose presence may make that judgment more complete.
Rasch's goes on to state in § 38:29 General Rule:
All persons in possession of real property who derive their title through the tenant should be made parties to the proceeding, otherwise their dispossession under the warrant issued therein will be wrongful. They are proper parties.
The evidence suggests that Orchard Associates, Inc. does operate in part from the subject premises. The affidavits of Louie and Navid Hakimian confirm that Great Neck Retail Supply Corp. still operates from the subject premises. Therefore, both companies are parties to this case.
CONCLUSION
Respondent's motion is denied in its entirety. This case is set down for trial for Tuesday, April 27, 2010 at 11:00 A.M.
So Ordered: